RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20060000736


      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             |
|     |Ms. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Jerome Pionk                  |     |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 his medical discharge from the
Army National Guard be changed.

2.  The applicant states he was not medically incapable of performing his
duties.  He believes he was wrongfully discharged because he fully
performed his duties as a Military Policeman after his surgeries.  He
states that a neurosurgeon at the Department of Veterans Affairs (DVA)
Hospital fully cleared him.

3.  The applicant provides a copy of Progress Notes from a staff physician
at the DVA Medical Center in Jackson, Mississippi.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 March 2002.  The application submitted in this case is dated
7 January 2006.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant initially served in the Regular Army from 17 July 1990
through 12 January 1994.  He enlisted in the Mississippi Army National
Guard (MSARNG) on 8 July 1994.

4.  The applicant’s personnel records contain a DA Form 2173 (Statement of
Medical Examination and Duty Status) dated 14 June 1996.  This document
indicates he stepped in a hole during a training exercise at Camp Shelby,
Mississippi and twisted his knee.

5.  The complete Medical Duty Review Board (MDRB) proceedings are not
available.




6.  In a 22 January 2002 memorandum, the Mississippi National Guard MDRB
determined that, due to the applicant’s medical condition (not indicated),
he was a non-deployable mobilization asset and recommended separation.  The
applicant was advised that he could appeal the board’s finding by
submitting additional information which pertained to his medical condition.
 The applicant signed the memorandum on 2 March 2002 indicating he fully
understood the MDRB’s finding and also understood that he may be separated
from the MSARNG due to his medical condition.  He declined to submit an
appeal of the MDRB’s finding.

7.  On 11 February 2002, the commanding officer of the 112th Military
Police Battalion, MSARNG, recommended that the applicant be discharged.

8.  The applicant was discharged from the MSARNG on 19 March 2002 under the
provisions of National Guard Regulation 600-200, paragraph 8-26j(1) based
on being medically unfit for retention.  He was given a reenlistment
eligibility code of RE-3 (disqualification that is waivable).

9.  The applicant provided Progress Notes, dated 17 September 2004, from a
staff physician at the Veterans Affairs Medical Center in Jackson,
Mississippi.  The document indicated the applicant was diagnosed as having
an intracranial arachnoid cyst.  He was followed in neurosurgery for over
four years.  He had increasing headaches attributed to the left temporal
fossa arachnoid cyst.  The legion was drained and a reservoir was placed in
the temporal fossa.  The document indicated the reservoir was placed into
the cyst on 12 April 2001 and was removed on 31 July 2003.  The physician
indicated the applicant was fit to return to his duties in National Guard
without any restrictions.

10.  The applicant’s service personnel records show he enlisted in the
Kansas ARNG on 3 March 2006 with a medical waiver.

11.  National Guard Regulation 600-200, paragraph 8-26 governs the
discharge from the State Army National Guard and/or as a Reserve of the
Army.  Subparagraph 8-26j(1) states Soldiers are discharged from the State
ARNG or from the Reserve of the Army when a Soldier is determined to be
medically unfit for retention per Army Regulation 40-501, chapter 3.
Commanders who suspect that a Soldier may not be medically qualified for
retention will direct the Soldier to report for a complete medical
examination per Army Regulation 40-501 and National Guard Regulation  40-
501.




DISCUSSION AND CONCLUSIONS:

1.  In January 2002, a MDRB found the applicant medically unfit for
military service for an unknown condition.  At that time, it was determined
that the applicant was a non-deployable mobilization asset and it was
recommended that he be separated from the service.  The applicant
acknowledged that he understood the MDRB’s finding and that he may be
separated from the MSARNG due to his medical condition.

2.  The applicant contends that he was not medically incapable of
performing his duties and had fully performed his duties as a Military
Policeman after his surgeries.  However, competent medical authorities had
determined that his medical condition at the time of his discharge from the
MSARNG had prevented him from performing his duties and he provided no
evidence to show he disagreed with that finding.

3.  The applicant has failed to show through the evidence submitted or the
evidence of record that the narrative reason for separation issued to him
was in error or unjust.  Therefore, there is no basis for granting his
request.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 March 2002; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 18 March 2005.  The applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

LS______  JM______  JP______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.
2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  Linda Simmons_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060000736                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060822                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20020319                                |
|DISCHARGE AUTHORITY     |NGR 600-200, paragraph 8-26j(1)         |
|DISCHARGE REASON        |Medically unfit for retention           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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