DOCKET NUMBER:  AR20090003161 


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, correction of his records as follows:

	a.  change the authority and reason for separation and the reenlistment eligibility code on his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) issued by the North Carolina Army National Guard (NCARNG) on 1 October 1992 to reflect a medical discharge; 

	b.  award him 1 year and 8 months of service credit toward non-regular retirement; 

	c.  transfer him to the Retired Reserve; 

	d.  reinstate his rank/grade of sergeant (SGT)/E-5; and

	e.  correct his DD Form 261 (Report of Investigation-Line of Duty and Misconduct Status), dated 7 June 1992, to show his injury was in “Line of Duty.”  

2.  Item 5 (I request the following error or injustice in the record be corrected) of the applicant’s DD Form 149 (Application for Correction of Military Record) also states “…request the issuance of…”; however, the sentence is incomplete. 

3.  The applicant states that he injured his lower back and left leg during annual training in 1992 when he fell while getting off a military bus.  He adds that although his unit did take him to Seymour Johnson Air Force Base, NC, for 

treatment, he continued his treatment over the course of 12 to 13 visits for pain in his back and leg, and was advised to enroll in the Department of Veterans Affairs (VA) Medical Center in NC.  He then moved to Georgia (GA) and informed his NC unit of his move and requested an interstate transfer to the GAARNG in order to enroll in the GA VA clinic; however, his NC unit never processed his request for a transfer.  He concludes that his NC unit failed to follow regulations by not honoring his transfer request and by discharging him with an under honorable conditions (general) discharge despite his 18-year lock-in. 

4.  The applicant provides a copy of his NGB Form 22, dated 1 October 1992; a copy of his DD Form 261, dated 7 June 1992; a copy of his DA Form 2173 (Statement of Medical Examination and Duty Status), dated 16 May 1992; and copies of various chronological records of medical care, individual sick slips, physical therapy consults, and radiological consultation request/report, dated on miscellaneous dates in May and June 1992, in support of his request.

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 records show he was born on 7 January 1952 and enlisted in the Regular Army for a period of 3 years on 24 July 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 52B (Power Generator Repairer).  He was honorably released from active duty in the rank/grade of specialist four (SP4)/E-4 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 20 April 1972. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 1 year, 8 months, and 15 days of creditable active service.


3.  The applicant’s records also show he enlisted in the NCARNG for a period of 1 year on 14 December 1974.  He was then honorably discharged from the NCARNG on 23 July 1975 and transferred to the USAR Control Group (Reinforcement) on 24 July 1975.  He remained in that component until he was honorably discharged on 23 July 1976 by reason of expiration of his term of service (ETS).

4.  The applicant’s records further show he enlisted in the USAR on 28 November 1977.  He then executed a 3-year reenlistment in the USAR on 28 November 1978, was promoted to SGT/E-5 on 20 December 1980, and executed a 6-year reenlistment in the USAR on 28 August 1981.  He was honorably discharged from the USAR on 27 August 1987.

5.  On 20 February 1990, the applicant enlisted in the GAARNG in the rank/grade of SGT/E-5 for a period of 3 years.  He was subsequently assigned to the 201st Maintenance Company, Atlanta, GA. 

6.  On 15 October 1991, the applicant requested and was authorized an interstate transfer from the GAARNG to the NCARNG and was assigned to Detachment 1, 694th Maintenance Company, Snow Hill, NC.

7.  On 3 May 1992, while on active duty for training, and after returning from work detail at Letterkenny Army Depot, Chambersburg, PA, the applicant was exiting the bus on a cold, rainy day when he slipped and fell on some rocks.  He was treated in an outpatient status at the U.S. Army Health Clinic, Letterkenny Army Depot, PA, and returned to his unit.

8.  Item 30 (Details of Accident-Remarks) of the applicant’s DA Form 2173, dated 16 May 1992, shows the entry “After returning from work detail at Letterkenny Army Depot, [Applicant] was exiting a bus on a cold rainy day and slipped and fell onto some rocks.  As of the 16th day of May 1992, [Applicant] does not seem to be experiencing any ongoing problems as a result of this injury.”

9.  On 27 May 1992, the applicant underwent a physical examination for the purpose of incapacitation pay.  However, the attending physician indicated that he found the applicant not disabled for the performance of his military duties and civilian occupation.  He further recommended physical therapy for a period of 3 to 4 months.

10.  On 6 June 1992, a line-of-duty (LOD) investigating officer (IO) was appointed by the 690th Maintenance Battalion, NCARNG, to look into the applicant’s injury. 

11.  On 7 June 1992, a formal LOD investigation was conducted for the applicant’s medical diagnosis of low back pain (sciatica).  Sciatica is a set of symptoms including pain that may be caused by general compression and/or irritation of one of five nerve roots that give rise to the sciatic nerve or by compression or irritation of the sciatic nerve itself.  The pain is felt in the lower back, buttock, and/or various parts of the leg and foot. In addition to pain, which is sometimes severe, there may be numbness, muscular weakness, pins and needles or tingling and difficulty in moving or controlling the leg.  Typically, the symptoms are only felt on one side of the body.  Although sciatica is a relatively common form of low back pain and leg pain, sciatica is a set of symptoms rather than a diagnosis for what is irritating the root of the nerve, causing the pain.  Sciatica may be due to a ruptured intervertebral disk, narrowing of the spinal canal that puts pressure on the nerve called spinal stenosis, or an injury such as a pelvic fracture.  In many cases, no cause can be found.

12.  The DD Form 261 indicated that the applicant was returning from work and as he exited the bus, he slipped and fell onto some rocks that caused injury to his lower back and leg.  According to the physician statement, he seemed to be experiencing on-going problems with his lower back and leg and there seemed to be continuous treatment.  He underwent physical therapy at Seymour Johnson Air Force Base, NC, three times per week.  Item 10 (Findings) of this form shows the applicant’s sciatica condition was found to be “Not in Line of Duty-Not Due to Own Misconduct.”  The LOD was approved on 11 June 1992.

13.  On 25 June 1992, Headquarters, 690th Maintenance Battalion, Kinston, NC, published Orders 24-1, directing the applicant’s reduction from SGT/E-5 to specialist four (SP4)/E-4, effective 15 October 1991, in accordance with paragraph 6-44 of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) by reason of inefficiency.

14.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, on 6 June 1992, the Department of Crime Control and Public Safety, NCARNG, published Orders 209-25, directing the applicant’s discharge from the ARNG and transfer to the USAR Control Group (Reinforcement), effective 1 October 1992, with an under honorable (general) conditions character of service, in accordance with paragraph 8-27(g) of NGR 600-200 and Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures)

15.  On 1 October 1992, the applicant was accordingly discharged.  The NGB Form 22 he was issued shows he completed 2 years, 7 months, and 12 days of inactive service during this period and a total of 18 years and 4 months of total 

service for pay.  Items 6a (Grade) and 6b (Pay Grade) show he was a SP4/E-4 and item 6 (Date of Rank) shows the date as 15 October 1991.  A Chronological Statement of Retirement Points is not available.

16.  NGR 600-200 establishes the standards, policies and procedures for the management of ARNG enlisted Soldiers and specifically the policy for enlisted promotion, appointment, and reduction.  Paragraph 6-44 states that Soldiers could be reduced for inefficiency.  Inefficiency is defined not only as technical incompetence but also as patterns or acts of conduct demonstrating that the Soldier concerned lacks the abilities and qualities required and expected of a Soldier of his or her rank and experience.  Commanders may consider any misconduct, to include a record of unexcused absences or unsatisfactory participation, as evidence of inefficiency.

17.  NGR 600-200, chapter 8 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard.  Paragraph 8-27(g) of that regulation provides in pertinent part that individuals can be separated for being an unsatisfactory participant.

18.  Army Regulation 135-91 prescribes policy and procedures governing the various types of service obligations and participation requirements for members of the USAR and Army National Guard (ARNG).  Chapter 4 provides guidance governing absences from Ready Reserve Training for enlisted and officer personnel of the ARNG and USAR.  Paragraph 4-2 states, in pertinent part, that the unit commander or acting commander is authorized to excuse absences and authorize equivalent training (ET).  This authority will not be further delegated.  A State Adjutant General (for ARNG) and general officer commanders (for USAR) are authorized to grant exceptions to unexcused absences and it may be delegated to commanders in grade O-5 or above.  

19.  Army Regulation 135-178 provides for the separation of enlisted personnel of the USAR and the ARNG.  Chapter 6 of the regulation governs the separation for unsatisfactory performance.  The regulation provides that a Soldier may be separated under this chapter when it is determined that he or she is unqualified for further military service by reason of unsatisfactory performance.  Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by his or her military records.

20.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, states that to be eligible for retired pay an individual does not need to have a military status at the 

time of application for retired pay, but must have (1) attained age 60; (2) completed a minimum of 20 years of qualifying service; and (3) at the time the applicant was discharged, served the last 8 years of his or her qualifying service as a Reserve Component (RC) Soldier.  This regulation also specifies, in part, that each RC Soldier who completes the service required to be eligible for retired pay at age 60 will be notified in writing with a 20-year letter within 1 year after he/she completes the service.

21.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer USAR Soldiers.  Chapter 7 of the regulation relates to the removal of Soldiers from an active status and states, in pertinent part, that Soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.  

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness).  If the medical evaluation board (MEB) determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

23.  Paragraph 3-1 of this regulation provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.  The Army must find that a service member is physically unfit to reasonably perform his/her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

24.  Paragraph 3-2b provides for retirement or separation from active service.  This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 

25.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities.  Army Regulation 635-40, Appendix B, modifies those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions.  Ratings can range from 0 to 100 percent, rising in increments of 10 percent.

26.  Army Regulation 600-8-1 (effective 17 October 1986, revised in 1994; however, the 1986 version is still used as the LOD authority), chapters 39 through 41, dealing with LOD investigations, provides that an LOD is conducted to arrive at a determination whether misconduct or negligence was involved in the injury, disease, or death, and to what degree.  Depending on the circumstances of the case, an investigation may or may not be required to make a determination.  The LD determination is presumed to be In Line of Duty without an investigation except in two instances, one is when and injury, disease, or medical condition occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence, and two when a USAR or an ARNG Soldier is serving on active duty tour of 30 days or less and is disabled due to disease.

27.  Paragraph 39-2 states, in pertinent part, that in the case of an injury or death of a USAR or ARNG Soldier while travelling to or from authorized training or duty, a formal investigation must be conducted.  Documentation for an informal investigation typically consists of a DA Form 2173, completed by the military treatment facility and the unit commander, and is approved by the appointing authority, State Adjutant General, or higher authority. 

28.  The doctrine of laches is defined by Black’s Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.




29.  Army Regulation 15-185 governs the operation of the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the authority and reason for separation and the reenlistment eligibility code on his NGB Form 22 should be changed to a medical discharge; that he should be awarded 1 year and 8 months of service credit toward non-regular retirement; that he should be transferred to the Retired Reserve; that his rank/grade of SGT/E-5 should be reinstated; and that his injury be determined to be in the LOD.

2.  With respect to the applicant’s discharge, the applicant’s record is void of the facts and circumstances that led to his discharge; however, his record contains a properly constituted NGB Form 22 that shows he was discharged under the provisions of paragraph 8-27g of NGR 600-200 by reason of unsatisfactory participation.  Essentially, he was required to attend all scheduled unit training assemblies and annual training periods under the provisions of Army Regulation 135-91, but it appears that he did not do so.  Absent evidence to the contrary, the applicant’s involuntary separation under the provisions of paragraph 8-27(g) of NGR 600-200 by reason of unsatisfactory performance is presumed to be administratively correct and in conformance with applicable regulations.  

3.  With respect to the applicant’s retirement, the evidence of record shows that the applicant completed 18 years and 4 months of service for pay at the time he was discharged from the ARNG.  A Chronological Statement of Retirement Points is not available; therefore, it is not known how many years of qualifying service for a nonregular retirement the applicant had at the time he retired.  However, it appears he did not complete a minimum of 20 years of qualifying service.  Therefore, he was never issued a 20-year letter.

4.  With respect to awarding the applicant an additional 1 year and 8 months of service he did not perform, it is presumed the applicant is asking for this time so it will be shown he had completed sufficient services for a nonregular retirement. However, again, a Chronological Statement of Retirement Points is not available and therefore it is not known how many years of qualifying service he had.  In addition, as noted above, there is insufficient evidence to show he was not properly discharged.

5.  With respect to the applicant’s rank/grade, the evidence of record shows that the applicant was reduced from SGT/E-5 to SP4/E-4 for inefficiency in accordance with paragraph 6-44 of NGR 600-200.  Inefficiency is defined not only as technical incompetence, but also as patterns or acts of conduct demonstrating that the Soldier concerned lacks the abilities and qualities required and expected of a Soldier of his or her rank and experience.  Commanders may consider any misconduct, to include a record of unexcused absences or unsatisfactory participation, as evidence of inefficiency.  There is no evidence that the applicant was promoted back to SGT/E-5 from the time he was reduced to the time he was discharged.  Absent evidence to the contrary, the applicant’s rank/grade are correctly listed on his NGB Form 22.

6.  With respect to his medical discharge/retirement, the evidence of record shows that the applicant suffered an injury and that he was appropriately treated for that injury through physical therapy.  However, he was determined to be medically qualified for and, ultimately, was returned to duty.  The applicant did not have a medically unfitting condition and there is no evidence that his injury would have warranted his referral to the physical disability evaluation system.  Therefore, he was not considered by a medical evaluation board (MEB).  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

7.  With respect to his LOD, there are three possible entries in item 10 of the DD Form 361: LOD, Not LOD-Not due to own misconduct, and LOD-Due to own misconduct.  The LOD investigation was conducted by an investigation officer and approved by a reviewing authority on 11 June 1992.  This determination was "Not LOD-Not due to own misconduct."  Since the applicant was not disabled due to a disease, the command was not required to perform a formal LOD investigation, unless the command suspected the injury occurred under strange or doubtful circumstances.  

8.  The applicant's incident occurred over 17 years ago.  An arbitrary ruling in his favor, without knowing what further Government evidence led to the LOD determination would cause prejudice to the Government.  Had the applicant raised the issue of the LOD finding in a timely manner an equitable decision could possibly have been made in his case.  However, since it is now 17 years after the incident, the doctrine of laches is invoked in his case.




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)                                         AR20090003161



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ABCMR Record of Proceedings (cont)                                         AR20090003161



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