RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20050016166


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that he be issued a 15-year letter
(notification of eligibility for retired pay at age 60).

2.  The applicant states he was discharged from the North Carolina Army
National Guard (NCARNG) with a 30 percent disability [rating] for wounds
received on 8 July 2003 in Iraq.  He believes he should have been retired
after completing 15 years, 2 months, and 5 days of service creditable for a
Reserve retirement.

3.  The applicant provides his discharge orders; a retirement points
accounting summary; a Department of Veterans Affairs (DVA) Rating Decision;
and a VA Form 21-22 (Appointment of Veterans Service Organization as
Claimant’s Representative); a line of duty investigation; and copies of his
service medical records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant has served in Operation Iraqi Freedom.

2.  After having had prior service, the applicant enlisted in the NCARNG on
      26 May 1994.  On 15 March 2003, he was ordered to active duty in
support of Iraqi Freedom.

3.  On 8 July 2003, the applicant suffered multiple fragment wounds to the
neck and ear (lacerations) after his unit came under a rocket-propelled
grenade attack. He was medically evacuated to Germany and then to Walter
Reed Army Medical Center (WRAMC).

4.  A Chronological Record of Medical Care printed 18 November 2003 shows
the applicant was followed-up for removal of a foreign body from his ear.
His neck was found to be healing well.  His assessment was “DOING WELL.”

5.  On 24 July 2004, the applicant was released from active duty and
returned to the NCARNG.

6.  On 4 December 2004, the applicant extended his ARNG enlistment, making
his expiration term of service 25 May 2006.
7.  On 3 February 2005, the applicant applied for DVA service-connected
compensation.

8.  On 19 May 2005, the DVA awarded the applicant a combined disability
rating of 30 percent (cervical degenerative disc disease and degenerative
joint disease, 10 percent; shell fragment wounds to the left neck area,
zero percent; post-traumatic stress disorder, 10 percent; tinnitus, 10
percent; and bilateral hearing loss, 10 percent).

9.  On 14 June 2005, the applicant was recommended for discharge from the
ARNG for having received a 30 percent disability rating from the DVA.

10.  After his release from active duty, the applicant continued to serve
satisfactorily in the NCARNG, earning a total of 118 retirement points for
retirement year 26 May 2004 through 25 May 2005 and 12 retirement points
(to include 9 inactive duty training points) for retirement year 16 May
2005 through 31 July 2005.

11.  On 31 July 2005, the applicant was discharged from the ARNG and as a
Reserve of the Army under the provisions of National Guard Regulation 600-
200, paragraph 8-26j(1).  He had completed 15 years, 2 months, and 5 days
of services creditable towards a Reserve retirement.

12.  In the processing of this case, an advisory opinion was obtained from
the Personnel Division, National Guard Bureau (NGB).  That office
recommended disapproval of the applicant’s request.  That office noted that
the applicant’s injuries were incurred in the line of duty; therefore, he
was not entitled to an early retirement under the provisions of Title 10,
U. S. Code, section 12731b(a).  No other provision exists that would
provide for his retirement.

13.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He stated that he was wounded in Iraq and eventually
transferred to WRAMC for more complete care including physical therapy and
invasive surgery. Upon his release from WRAMC, he was directed to return to
Fort Dix, NJ for further long-term physical therapy.  He was sent back to
the theater on                7 February 2004 to conclude his tour of duty,
although the range of motion in his neck was minimal and his hearing
diminished.  His unit returned to the States in July 2004, at which time he
was released from active duty to continue his service in the ARNG.  He
applied for disability from the DVA, after which he was informed he was no
longer retainable in the ARNG.  He feels that being a “broken” Soldier is a
justifiable reason to be viewed as unfit to serve his country in a combat
role.  However, he should have received a medical retirement in light of
the duration of his honorable service and not just discharged with no
thought given to his previous service.  With his rebuttal, he provided his
DVA Rating Decision and his Purple Heart Orders.

14.  The staff of the Board requested NBG clarify the validity of the
applicant’s discharge from the ARNG.  In a second advisory opinion, the
Personnel Division, NGB recommended partial approval of his request.  NGB
noted that, since the applicant should not have been separated without a
Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) for his
disability, he is entitled to relief.  If the applicant was agreeable and
if his disability does not affect his ability to perform his duties, NGB
recommended that the NCARNG void his separation and reenlist him with all
due back pay and allowances.  If the applicant is either unwilling or
physically unable to elect this route, NBG recommended the NCARNG bring him
back to conduct an MEB to determine if he should be retired due to physical
disability incurred in the line of duty.

15.  The Personnel Division, NGB went on to note that it had contacted the
Office of the Chief Surgeon, NGB which confirmed there is no policy which
states that a Soldier with more than a 30 percent disability cannot be
retained in the ARNG unless a medical provider finds that the Soldier does
not meet retention standards.  The Personnel Division, NGB contacted the
NCARNG, which verified that there is no State law that required the
applicant’s separation and admitted the applicant was discharged based on
incorrect guidance.  The NCARNG informed the Personnel Division, NGB that
they have Soldiers who are over      30 percent disabled, yet still drill
in the NCARNG for retirement point purposes.

16.  A copy of the second advisory opinion was provided to the applicant
for comment or rebuttal.  He concurred with the advisory opinion; however,
it appears he only concurred with the portion where NBG recommended the
NCARNG bring him back to conduct an MEB to determine if he should be
retired due to physical disability incurred in the line of duty.  In a
separate letter, the applicant stated that the wounds he sustained in Iraq
are not temporary.  His hearing will not return and the lack of motion in
his injured neck makes him physically unfit to do his military job as a
military policeman.  He requested his case be presented to the Board.

17.  National Guard Regulation 600-200 (Enlisted Personnel Management),
paragraph 8-26j(1) states that a member may be discharged for being
medically unfit for retention.  Commanders who suspect that a Soldier may
not be medically qualified for retention will direct the Soldier to report
for a complete medical examination.  Discharge will not be ordered while
the case is pending final disposition.

18.  Public Law 106-65, enacted 5 October 1999, amended chapter 1223
(Retired Pay for Non-Regular Service) of Title 10, U. S. Code by adding
section 12731b, (Special rule for members with physical disabilities not
incurred in line of duty).  Section 12731b(a) states a member of the
Selected Reserve who no longer meets the qualifications for membership in
the Selected Reserve solely because the member is unfit because of physical
disability may, for the purposes of section 12731 (Age and Service
Requirements) of this title, be treated as having met the service
requirements and be provided with the notification required if he has
completed at least 15 and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  On 8 July 2003, while in Iraq, the applicant suffered multiple fragment
wounds to the neck and ear.  He later was followed-up for removal of a
foreign body from his ear.  He remained on active duty until 24 July 2004,
when he was returned to the NCARNG.

2.  The evidence of record shows that the applicant continued to serve
satisfactorily in the NCARNG from 25 July 2004 until 31 July 2005, when the
NCARNG separated him under the mistaken belief that the fact the DVA
awarded him a 30 percent disability rating required his separation.

3.  Based on the available evidence, it does not appear that the applicant
is eligible for a 15-year retirement.  The law that authorizes a 15-year
retirement for Reserve members specifically applies only to members with
physical disabilities not incurred in line of duty.  In addition, the
evidence of record shows that he continued to satisfactorily perform his
duties after he was released from active duty and up until the time he was
discharged from the ARNG.

4.  While it would not be equitable to grant the relief requested, it would
be equitable to void the applicant’s 31 July 2005 discharge from the ARNG
and as a Reserve of the Army.  The applicant’s NCARNG unit should then
direct him to report for a complete medical examination.  If the applicant
is found to be medically unfit for retention, then discharge action should
be initiated.

5.  The applicant should understand that if he is found to be medically
unfit for retention, and if his disabilities are found to have been
incurred in the line of duty, then he still will not be eligible for a 15-
year retirement.  However, the applicant should request that careful
evaluation be made of the cervical degenerative disc disease and
degenerative joint disease found by the DVA.  Based on the evidence
available to this Board, the injuries the applicant received to his neck
(lacerations) may or may not have caused those conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__alr___  __lmb___  __qas___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that the State Army National Guard records and all Department of
the Army records of the individual concerned be corrected by:

     a.  voiding his 31 July 2005 discharge from the Army National Guard
and as a Reserve of the Army (and retaining him for the convenience of the
Government beyond his normal expiration term of service);

     b.  having his NCARNG unit direct him to report for a complete medical
examination; and

     c.  taking appropriate action once final disposition has been made by
medical authorities.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
issuing him a 15-year letter.




                                  __Allen L. Raub_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016166                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060912                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |135.03                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]