RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2008
	DOCKET NUMBER:  AR20070017242 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s discharge on 1 September 2006 be voided and that he be reinstated in the South Carolina Army National Guard (SCARNG) with all back pay and allowances. 

2.  Counsel states, in effect, that the applicant was diagnosed as Human Immunodeficiency Virus (HIV) positive while serving on active duty.  The applicant was notified that he could prove fitness for service in order to remain in the SCARNG.  As a result, the applicant chose to prove fitness for duty at his own expense within 120 days of the date of his notification on 20 April 2006.  The applicant had a fit for duty physical on 25 July 2006 and was found fit for duty.  Counsel alleges that the SCARNG discharged the applicant for failure to obtain the required physical even though he had received a fit for duty physical within the required timeframe.  

3.  Counsel also states that the SCARNG properly notified the applicant of his military options in reference to Army Regulation 600-110, paragraph 5-17.  Counsel alleges that the applicant should not have been discharged from the SCARNG on the basis that he did not find a non-deployable billet.  Counsel states the applicant was not required to find a non-deployable billet in accordance with Army Regulation 600-110.  Commanders were responsible for advising HIV-infected U.S. Army Reserve (USAR) Soldiers of the existence of 
non-deployable billets.  The 20 April 2006 notification memorandum did not list the existence of non-deployable billets available.  In a 10 August 2006 memorandum, the applicant was notified that he had until 9 December 2006 to reclassify to a military occupational specialty (MOS) that did not require a Soldier to be mobilized.  

4.  Counsel provides the following documents in support of the applicant’s application:

      a.  Memorandum, Subject: Army National Guard Policy for HIV Positive Member [applicant’s name and social security number (SSN)], dated 1 December 2005; 
      
      b.  Medical Review Board (MRB) Transmittal, dated 9 December 2005; 
      
      c.  Memorandum, Subject: Record of MRB Proceedings, dated 12 December 2005; 
      
      d.  Letter, dated 1 December 2005, from the Deputy State Surgeon, SCARNG; 
      
      e.  Letter, dated 25 July 2006, from the Department of Veterans Affairs; 
      
      f.  Memorandum, Subject: Administrative Separation [applicant’s name and SSN], dated 10 August 2006;
      
      g.  Radiology Report, dated 25 July 2006, with lab results; 
      
      h.  Progress Notes, dated 25 July 2006;
      
      i.  Letter of Notification of Options under Army Regulation 600-110, dated 20 April 2006; 
      
      j.  Memorandum, Subject: Army National Guard Policy for HIV Positive Member [applicant’s name and SSN], dated 23 March 2006; and 
      
      k.  Memorandum, Subject: Medical Evaluation Instructions, dated
23 March 2006.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the SCARNG on 15 March 2001.  At the completion of basic and advanced individual training, he was awarded MOS 19K (M1 Amor Crewman).  He was promoted to specialist on 26 March 2003.  

2.  He was ordered to active duty on 15 July 2004 in support of Operation Iraqi Freedom and was released from active duty on 5 October 2005.

3.  On an unknown date, the applicant tested positive for the HIV antibody.  

4.  In a 1 December 2005 letter, the applicant’s unit commander was notified that the applicant had tested positive for the HIV antibody.  The unit commander was informed that he should advise the applicant in writing of his options.  The letter indicated that the applicant had 120 days from the date of his notification to complete a medical evaluation at his own expense.  

5.  On 9 December 2005, an MRB determined the applicant was fully fit and was 
non-deployable due to a secondary medical condition.  
6.  In a 12 December 2005 memorandum, the applicant was informed that the MRB evaluated his ability to perform the physical requirements of his MOS and determined he needed to reclassify to an MOS that did not require him to be mobilized.  

7.  On 20 April 2006, the applicant was advised of the options available to SCARNG Soldiers who had been confirmed to be HIV antibody positive.  He was advised of his rights.  

8.  On 20 April 2006, the applicant acknowledged notification that he had been advised of and understood the options available to him.  He indicated that he would prove fitness for duty at his own expense.  He also acknowledged that he had 120 days from 20 April 2006 (date of notification) to complete the medical evaluation if he elected to prove fitness for duty at his own expense.  He further acknowledged that he understood that he could transfer to a vacant 
non-deployable position for which he was qualified at any time after he advised his commander of his intent to prove medical fitness.  

9.  The applicant underwent a physical examination on 25 July 2006 at the Williams Jennings Bryan Dorn Veterans Affairs Medical Center in Columbia, South Carolina.  The examining physician stated, in part, “I see no reason why he cannot return to guard duty; he is well right now, and expect CD4 will continue to rise for some months more.  He will have CXR today and then go to Release of Information with his consent forms, so that his record may be sent to the proper National Guard authorities.”

10.  In a 10 August 2006 memorandum, the applicant’s unit was informed that the MRB evaluated the applicant’s ability to perform duties in MOS 19K and determined that he needed to reclassify to an MOS that did not require him to be mobilized.  The memorandum indicated that it had been eight months and he had not reclassified.  As a result, an administrative separation for failure to reclassify was required.  

11.  The applicant was discharged from the SCARNG on 1 September 2006 under the provisions of National Guard Regulation 600-200, paragraph 8-27i for failure to obtain required physical and Army Regulation 135-178, paragraph 4-4 (sic) for voluntary separation of Soldiers on indefinite re-enlistments.  On the following date, he was transferred to the USAR Control Group (Annual Training). At the time of his discharge, he had completed 5 years, 5 months, and 17 days total service for pay.


12.  On 29 April 2008, the SCARNG informed the Board analyst that the applicant’s medical documents (Radiology Report and Progress Notes) do not specifically identify the applicant’s physical limitations.  As a result, the SCARNG was unable to reclassify him to a non-deployable MOS.  

13.  Army Regulation 600-110 prescribes policy, procedures, responsibilities, and standards concerning identification, surveillance, and administration of personnel infected with HIV.  Paragraph 5-10 states that HIV-infected Soldiers, not Active Guard Reserve (AGR) or on Extended Active Duty (EAD), may prove fitness for service.  ARNG HIV-infected Soldiers will have 120 days from the date they are notified of their infection to complete a medical evaluation to determine fitness per the established Department of Defense protocol for HIV or other guidance published by the Office of The Surgeon General.  HIV-infected ARNG Soldiers found to be medically unfit for duty will be separated per paragraph 5-11.  Soldiers found fit will be permitted to serve in the Selected Reserve in a 
non-deployable billet, if available.  Grade, MOS, and commuting constraints are applicable per existing regulations.  HIV-infected ARNG Soldiers will be involuntarily transferred to the Standby Reserve, following a case-by-case assessment, if they: (1) Fail to complete the initial medical evaluation in the prescribed period; or (2) Are found fit, but cannot be placed in a Selected Reserve non-deployable billet per grade/MOS/commuting constraints; or (3) Are in a Selected Reserve non-deployable billet and do not complete the annual reevaluation.  

14.  Army Regulation 600-110, paragraph 4-4 states that Soldiers who are 
HIV-infected and are determined to be fit for duty are eligible for all military professional development schools.  HIV-infected Soldiers may also attend formal military training required to qualify them for reclassification to a new MOS or award of skill qualification identifier (SQI), additional skill identifier (ASI), skill, or functional area provided the schooling does not exceed 20 weeks.  

15.  National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 5-13 states that an awarded MOS, especially the primary MOS (PMOS), normally represents an investment of time and effort by the ARNGUS and the Soldier.  In changing a PMOS, the Soldier’s desires will be considered; however, the overriding factors are the needs of the ARNGUS.  Subparagraph 
5-14a states that reclassification action may be requested by the Soldier or the commander.  Soldiers will be notified of mandatory and involuntary reclassification actions and given reasonable time to respond in writing to the classification authority.  

16.  National Guard Regulation 600-200, paragraph 5-14a states that when a Soldier is given a permanent physical profile, the unit commander may submit reclassification action through channels.  

17.  National Guard Regulation 600-200, paragraph 5-14g(1) states that if reclassification is directed and the Soldier cannot be qualified in the new MOS in the unit, the unit commander will submit, through channels, a request for reassignment.  

18.  National Guard Regulation 600-200, paragraph 5-14g(2) states that each level in the chain of command, to include the State AG, will attempt to find a position to which the Soldier can be assigned.  If there is no MOS and position available, to include a position outside of the geographical area, the individual concerned will either be transferred to the Individual Ready Reserve (IRR), the Retired Reserve, or the Inactive National Guard (ING).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was diagnosed as HIV positive.  He was evaluated by an MRB in December 2005 and was found fully fit for duty.  The MRB recommended that the applicant be reclassified to a non-deployable MOS.

2.  The evidence of record shows the applicant was notified on 20 April 2006 of the options available to him under Army Regulation 600-110.  At that time, he elected to prove his fitness for duty at his own expense and he acknowledged that he had 120 days from the date he was notified (20 April 2006) to complete the medical evaluation.  

3.  Records show the applicant underwent a physical examination on 25 July 2006 to prove his fitness for duty.  It appears that the examining physician found him fit for duty.  

4.  There is no evidence of record which indicates the applicant was reclassified to a non-deployable MOS by his commander.  It appears his unit failed to take this action because his medical doctor did not identify the applicant’s physical limitations.  However, the applicant’s medical condition was being HIV positive.  It is quite likely he did not have any physical limitations.  He simply needed to be reclassified into a non-deployable MOS.  Thus, he could have been reclassified into any non-deployable MOS, and his commander did not need a doctor to tell him what that MOS could be.  


5.  Since it appears the applicant was erroneously discharged on 1 September 2006 under the provisions of National Guard Regulation 600-200, paragraph 
8-27i for failure to obtain a required physical, it would be equitable to correct his records to reinstate him in the SCARNG.

6.  The SCARNG should then initiate the requirements outlined in National Guard Regulation 600-200, paragraph 5-14.  If the applicant cannot then be placed in a Selective Reserve non-deployable billet he may again be processed for discharge from the SCARNG.  

BOARD VOTE:

XX______  XX______  XX____   GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State ARNG records and Department of the Army records of the individual concerned be corrected by voiding his discharge from the SCARNG of 1 September 2006 and reinstating him in the SCARNG effective 1 September 2006.




                      XX________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070017242


7


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508