IN THE CASE OF:	  

		BOARD DATE:	        28 July 2009 

		DOCKET NUMBER:  AR20090002981 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of the statements, "Medically unfit for retention per Army Regulation 40-501, Chapter 3" (Standards of Medical Fitness), and "Discharge and Transfer to the Retired Reserve for Soldiers are [sic] not yet age 60" from Item 23 (Authority and Reason) of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).   

2.  The applicant states, in effect, that there was no medical reason for his separation. 

3.  In support of his application, the applicant provides copies his DD Forms 2808 (Report of Medical Examination), dated 15 November 2003 and 13 November 2008; his DD Forms 2807-1 (Report of Medical History), dated 15 November 2003 and 13 November 2008; his 2003 Medical Screening Summary – Cardiovascular Risk Screening Program; his AGSC Form 37R-E (Retirement/Promotion/Pension Request); his NGB Form 22; his Certificate of Eligibility for South Carolina National Guard (SCNG) Retirement Pension memorandum; his South Carolina Army National Guard (SCARNG) Retirement and Promotion orders; his ARNG Retirement Points History Statement; and letters from his fiancé and medical doctors.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he enlisted in the SCARNG, in pay grade E-4, on 30 August 1983, with prior enlisted service in the Regular Army (RA).  He reenlisted in the SCARNG on 12 July 2003.

3.  The applicant submits copies of his 15 November 2003 DD Form 2808, DD Form 2807-1, and, Medical Screening Summary – Cardiovascular Risk Screening Program showing he underwent a medical examination on that date for the purpose of reenlistment in the ARNG.  

4.  Orders Number 352-303, dated 18 December 2003, were issued ordering the applicant to active duty in support of Operation Iraqi Freedom not to exceed 540 days, with a reporting date of 4 January 2004.

5.  In a memorandum dated 12 January "2003" [sic], the applicant's commander recommended he be separated due to his ongoing medical condition that had prevented his deployment in support of Operation Iraqi Freedom.  He stated that the applicant possessed a long term condition that had an indeterminate recuperation period and would continue to hinder his deployability/dependability indefinitely.

6.  The applicant also submitted a copy of a letter from his fiancé, dated               18 January 2004, wherein she requested answers, in effect, pertaining to his medical condition.

7.  On 9 February 2004, the applicant's commander was directed to initiate separation action for the applicant based on the recommendation by the Medical Review Board conducted on 23 January 2004.  The commander was also advised to inform the applicant of his right to appeal that decision.  It was requested the applicant be discharged no later than 9 April 2004.  The Medical Review Board proceedings were not available to the Board.



8.  On 28 February 2004, the applicant received counseling notifying him of the separation action and his right to appeal that action.  On the same day, he acknowledged receipt of the counseling, waived his rights, and elected to submit a retirement packet for discharge.

9.  The applicant further submits a copy of his AGSC Form 37R-E, dated 8 April 2004, wherein he elected to be transferred to the Retired Reserve.  

10.  The applicant was honorably discharged from the SCARNG, in pay grade   E-5, on 10 April 2004 and transferred to the Retired Reserve.  He was credited with 20 years, 7 months, and 11 days of net service for the period under review.

11.  Item 23 of the applicant's NGB Form 22 contains the entries "Medically unfit for retention per Army Regulation 40-501, Chapter 3" and "Discharge and Transfer to the Retired Reserve for Soldiers are [sic] not yet age 60."  Item        18 (Remarks) contains the entry "NGB Form 22 and NGB Form 55b were mailed to Soldier's last known address."

12.  The applicant was issued a Certificate of Eligibility for SCNG Retirement Pension, dated 28 April 2004, wherein he was advised of his eligibility to draw a SCNG State Pension beginning on 21 June 2018 (his 60th birthday).  

13.  The applicant was issued Permanent Orders 125-005, dated 4 May 2004, reassigning him from the active ARNG to the State Retired List effective 11 April 2004 in the retired grade of staff sergeant (honorary), pay grade E-6.

14.  The applicant further submits a copy of his ARNG Retirement Points History Statement, dated 28 April 2004 which shows he was credited with 23 years, 8 months, and 14 days creditable service for retired pay.

15.  The applicant also submits copies of two letter from his medical doctors, dated 18 April 2008 and 3 November 2008, respectively.  The first letter stated that he was physically capable of joining the SCARNG and his diagnosis of hypertension was under good control with medication.  The second letter stated that he was in excellent shape to join the military from a cardiac standpoint at that time.

16.  The applicant further submits copies of his 13 November 2008 DD Form 2808 and DD Form 2807-1.  The purpose for the assessment is not identified and shows he was not referred for further evaluation.

17.  In an advisory opinion received on 3 June 2009, the Chief, Personnel Division, NGB, reiterated the applicant's request and statements.  The NGB official stated that the NGB, Personnel Division, consulted with the Chief Surgeon's Division Office, and recommended disapproval of the applicant's request.  The recommendation was based on the Medical Review Board, held on 23 January 2004, recommending that the Soldier be separated.  The disqualification of the Soldier was based on the premise of Army Regulation 40-501, Chapter 3, section 41(e), "Miscellaneous Conditions and Defects.  Conditions and defects not mentioned elsewhere in that chapter are causes for referral to a Medical Evaluation Board, if – (1) the conditions (individually or in a combination) result in interference with satisfactory performance of duty as substantiated by the individual's commander or supervisor, or (2) the individual's health or well-being would be compromised if he or she were to remain in the military service.  As a result, the Commander generated a memorandum from the SCARNG, dated 9 February 2009, where he directed initiating separation action on the applicant.

18.  The NGB official also stated that in accordance with Army Regulation 40-501, Chapter 10, a counseling statement was issued to notify the Soldier of his right to appeal the action.  The DA Form 4856 (General Counseling Form), dated 28 February 2004, reflected that the Soldier acknowledged having been counseled and concurred that he understood the reason for that counseling.  In addition, the Soldier waived his right to the appeal process and requested that they submit his retirement packet for discharge.  In support of the Soldier's concurrence, the results of the Commander's interview states:  "this an [sic] exceptional Soldier desiring to be discharged due to his medical condition."  Army Regulation 601-210, Chapter 4, section 4-5(a) states that "any applicant who was last separated or discharged from any component of the US Armed Forces for medical reasons with or without disability for enlistment into the Regular Army, United States Army Reserve (USAR), or ARNG will require a waiver."  The documents that are required for waiver consideration are:  (1) applicant's current Military Entrance Processing Station medical examination, (2) DD Form 214 (Certificate of Release or Discharge from Active Duty) or DD Form 215 (Correction to DD Form 214), if applicable, (3) United States Military Entrance Processing Command Form 680-3A-E (Request for Examination) with test results reflected, (4) all reports of separation, discharge, or release from any component of the US Armed Forces, (5) medical records if they are a current member of a troop program unit in the ARNG or USAR, and (6) if separated for medical reasons must submit DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings.

19.  The NGB official further stated that approval authority for a medical waiver is the Commanding General, U.S. Army Recruiting Command (USAREC) or an equivalent member of the ARNG.  The USAREC Command Surgeon will act on behalf of the CG, USAREC, for all medical waivers.  The applicant's discharge was due to being medically unfit, and his reenlistment eligibility (RE) code is    RE-3.  That code applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.  Eligibility:  ineligible unless a waiver is granted.  A waiver is therefore required for reinstatement.

20.  The NGB official also stated that the applicant included a current Department of Defense Form 2807-1, Report of Medical History.  The document indicated that the applicant was qualified for service.  As a result, during the consultation with the Chief Surgeon's Division, they concluded that the applicant would like to be reinstated into the ARNG.  Supporting documentation included in the Soldier's file suggested that the applicant desired not to deploy.  That observation was based on the following chain of events:  Oath of Extension of Enlistment or Reenlistment (DD Form 2808), dated 12 July 2003; a favorable Medical Examination (DD Form 2808), dated 15 November 2003; issuance of State Order Number 352-303, dated 18 December 2003, ordering the applicant to active duty; State Order Number 021-005, dated 21 January 2004, was an amendment to that order changing the active duty timeframe from 18 December 2003 (not to exceed 540 days) to 18 December 2003 to 13 January 2004, "Confirms VOTAGSC (Verbal Order of The Adjutant General of South Carolina)."  

21.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal in 4 June 2009.  He did not respond.

22.  National Guard Regulation 600-200 (ARNG Enlisted Personnel Management), chapter 8, paragraph 8-35, subparagraph l(8), specifies that State ARNG and/or USAR Soldiers will be separated for being medically unfit for retention per Army Regulation 40-501.  Commanders who suspect that a Solider may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501.  Commanders who do not recommend retention will request the Soldier's discharge.  

23.  Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3 provides that, for the separation of an individual found to be unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.  Hypertension is listed as a reason for referral for disability processing.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows a Medical Review Board conducted on 23 January 2004 recommended the applicant be separated from the SCARNG.  While the medical condition is not identified, it was stated that he possessed a long term condition (and may have been hypertension) that had an indeterminate recuperation period and would continue to hinder his deployability/dependability indefinitely.  Upon notification of the proposed separation action, the applicant waived his rights to the appeal process and elected to submit a retirement package for discharge.  On 10 April 2004, he was separated from the SCARNG and transferred to the Retired Reserve with over 23 years of total service for retired pay.  The entries "Medically unfit for retention per Army Regulation 40-501, Chapter 3" and "Discharge and Transfer to the Retired Reserve for Soldiers are [sic] not yet age 60" were entered in Item 23 of his NGB Form 22.  On 28 April 2004, he was notified of his eligibility for a SCARNG retirement pension on his 60th birthday (21 June 2018).  

2.  The applicant's military service was interrupted after it was determined that he was medically unfit for retention and was disqualified from further military service. Results of the Medical Review Board are not available for the Board's review.  In the absence of medical evidence to the contrary, it is presumed that the applicant was properly separated from the ARNG.  His contentions and submitted documents do not demonstrate error or injustice in the reason for his separation, nor error or injustice in the disposition of his case by his separation from the service.  There is no evidence of record and the applicant provided none to show that he was unjustly determined to be unfit for duty.  He also has failed to show, through the evidence submitted with his application, or the evidence of record, that the authority and reason for separation issued to him were incorrect and unjust.  Therefore, he is not entitled to their removal from Item 23 of his NGB Form 22.  He was properly discharged from the SCARNG on 10 April 2004 and he has not shown otherwise.  

3.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  __X_____  ___X___  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

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.




      _______ _  X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20090002981





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ABCMR Record of Proceedings (cont)                                         AR20090002981



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