BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090003497 


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, that his 28 October 1991 discharge orders from the Wisconsin Army National Guard (WIARNG) be voided.

2.  The applicant states that his discharge was illegal.  He is not an “amputee” as his orders specified; in effect, he was discharged because of an old injury to his right wrist.  The injury was aggravated by his military service.  He also adds that his range of motion (ROM) measurements were not made in accordance with Army Regulation 40-501 (Standards of Medical Fitness) which provides, in paragraph 3-12b, that measurements must be made with a goniometer and must conform to established methods.

3.  In a 2 March 2009 letter, the applicant’s Representative in Congress stated the applicant was declared medically unfit for retention and he was released by the WIARNG in 1991; however, the injury for which he was discharged was aggravated due to his unit commander ordering him to break his medical profile and do heavy lifting.  In addition, he was not given the proper evaluation for his wrist during the discharge proceedings because his ROM was not measured using a goniometer.

4.  The applicant provides a copy of his letter of discharge, dated 24 September 1991, 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 military records are not available for review in this case.  In response to a 22 August 2007 request, the applicant was informed that an exhaustive search was undertaken to locate his military records which were necessary for the processing of his application; however the records could not be located.  He was also informed that since this Board is not an investigative body and since there is a presumption that what the Army did in his case was correct, his application was being returned without action.  There now are sufficient documents contained in a reconstructed record provided by the applicant through his Member of Congress to conduct a fair and impartial review of this case.

3.  The applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows that, with prior Reserve Component and active Federal service, he enlisted in the WIARNG on 12 June 1980.  This form also shows that, at the time of his discharge from the WIARNG, he held various military occupational specialties (MOS), to include 11C (Indirect Fire Infantryman), 11B (Infantryman), and 95B (Military Policeman), and he was assigned to Headquarters and Headquarters Company, 2nd Battalion, 127th Infantry.

4.  The applicant's NGB Form 22 also shows he served through several extensions and/or reenlistments and he was honorably discharged on 23 October 1991.  This form further shows he completed 11 years, 4 months, and 12 days of ARNG service during this period.  Item 23 (Authority and Reason [for separation]) shows the entry "National Guard Regulation 600-200 [Enlisted Personnel Management], paragraph 8-26y - Medically Unfit for Retention Standards of Chapter 3, Army Regulation 40-501 [Standards of Medical Fitness])."


5.  The applicant's reconstructed records contain an endorsement, a memorandum, and a discharge order as follows:

	a.  an endorsement, dated 20 September 1991, addressed from the Office of the Adjutant General to the Director of Military Affairs, WIARNG, and signed by a health systems specialist, showing the State Surgeon reviewed the applicant's medical documents and recommended a medical discharge in accordance with paragraph 3-12a [sic] of Army Regulation 40-501; 

	b.  a memorandum, dated 24 September 1991, from the Director of Personnel and Administration, WIARNG, through the applicant's intermediate and senior commanders, to the applicant's immediate commander, wherein the Director of Personnel states that he concurs with the finding of medical unfitness and directs the applicant's discharge in accordance with paragraph 3-12a [sic] of Army Regulation 40-501 and also paragraph 8-26y of National Guard Regulation
600-200, effective 23 October 1991; and 

	c.  Orders 212-030, Department of Military Affairs, Office of the Adjutant General, WIARNG, dated 28 October 1991, directing the applicant's honorable discharge from the ARNG, effective 23 October 1991,under the authority of paragraph 8-26y of National Guard Regulation 600-200.

6.  Limited medical records show the applicant hurt his right wrist on 28 April 1989, while working at his civilian job as a custodian with the U.S. Postal Service. He underwent a scaphocapitate fusion.  One unidentified medical document provided by the applicant shows the following chronology:

	a.  29 October 1990 – a pin is removed from the applicant’s hand in the emergency room.  "His wrist looks good."  Return to work but no lifting more than 5 pounds with his right hand for the next 4 weeks.  He is using a wrist brace in the meantime

	b.  29 November 1990 – the applicant is doing well with his wrist.  X-rays show further healing of his intracarpal fusion.  No impairment will be made until he returns to the office in another 2-3 months.

	c.  6 February 1991 – the applicant was doing well with his hand until he was at the Reserve weekend training.  Even though he had work restrictions for not lifting any more than 10 pounds with his right hand, his superior officer, a lieutenant, told him to go ahead and lift it anyway.  As he was lifting some shell casing which weighed 35 pounds, he had more than wrist pain.  It is believed that the applicant re-injured his wrist when his supervisor told him to something in 
spite of his work restrictions.  The applicant further related that he showed the lieutenant a work restriction from his doctor; however, he tore them up and threw them into a basket.  Further examination revealed that "X-rays show complete consolidation between the scaphoid and lunate."

   d.  7 March 1991 – The applicant’s wrist is better and he has reasonably good motion; still wearing his brace part time.  However, he does have gaposis between the scapholunate, possible nonunion.  Clinically he is doing well.  The doctor opined “Lifting when he was on Reserves has definitely aggravated his wrist problem.”

	e.  1 May 1991 – the applicant has a nonunion between his lunate and the scaphoid and capitates; however, not greatly symptomatic.”  He was instructed not to lift over 20 pounds with his right arm, with no other restrictions.

	f.  21 August 1991 – the applicant has quite good motion.  A little crepitus is noted…otherwise his wrist looks good.

7.  A medical reevaluation for the U.S. Department of Labor was completed at Orthopedic Systems, S.C., Neenah, WI, on 28 March 1995.  The report states the applicant continues to work, and he smokes a pack of cigarettes and drinks
2 pots of coffee a day.  The report repeats the applicant’s allegation that his WIARNG chain of command forced him to perform work against the advice of his doctor, causing him to aggravate his wrist condition.  This led to his discharge for failure to meet medical fitness standards and he lost his pension after 17 years of service.  During clinical examination, the applicant presented as healthy with no evidence of [right side] muscular atrophy or wasting.  Although left side dominant, both forearms measured 11 inches and he had full ROM of the fingers and thumbs, elbows and shoulders.  The doctor noted the applicant “demonstrated a good deal of exaggerated [right wrist] pain behavior…and how he was essentially a one-armed man….  Yet, the appearance of the skin…as well as the muscle bulk [between right and left arms] was approximately equal…rather substantially betraying this contention.”  The doctor also indicated the applicant “displayed an obvious lack of effort [on strength testing] in the right upper extremity compared to the left, thus invalidating attempts to determine strength.  X-rays revealed no evolutionary degenerative changes or carpal migration and thus a stable condition.

8.  On 12 March 2008, by letter, the Adjutant General, WIARNG, notified the applicant that a review of his records showed the 24 September 1991 memorandum from the Director of Personnel and Administration was incorrect as it showed he was being discharged in accordance with paragraph 3-12a 
(amputation) of Army Regulation 40-501 and that it should have showed paragraph 3-12b (upper extremity - range of motion).  The Adjutant General further notified the applicant that appropriate action would be taken to correct his authority and reason for separation.

9.  On 1 July 2009, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  The advisory official recommended disapproval of the applicant's request regarding his discharge based on the lack of documentation.  The applicant failed to provide a copy of his MOS Medical Retention Board (MMRB) conducted at the State level.  The advisory official further stated that NGB personnel were able to locate:

	a.  a copy of WIARNG Orders 212-030, dated 28 July 1991, showing the applicant was honorably discharged to the Retired Reserve on 23 October 1991; 

	b.  a copy of his NGB Form 22 showing the applicant was discharged on 23 October 1991; 

	c.  a copy of a WIARNG memorandum, dated 24 September 1991, signed by the Director of Personnel and Administration, showing he (the Director) concurred with the applicant's medical status; and 

	d.  a copy of a letter, dated 12 March 2008, from the State Adjutant General showing the WIARNG would amend the applicant's discharge order to show the correct authority and reason for separation.

10.  On 20 August 2009, the applicant was provided with a copy of this advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He subsequently submitted a letter stating that he is unaware that any MMRB was conducted and that at the time he was verbally told he would be discharged under the provisions of paragraph 3-12 of Army Regulation 40-501.

11.  National Guard Regulation 600-200 (Enlisted Personnel Management) covers personnel management of ARNG personnel.  Chapter 8 of the regulation, in effect at the time, provided for discharges.  Paragraph 8-26 specified the reasons for administrative discharges from the ARNG.  Paragraph 8-26y stated that if a commander suspected a Soldier may not be medically qualified for retention, he/she would direct the Soldier to present him/herself for a medical examination in accordance with Army Regulation 40-501.  A complete medical examination would be accomplished and the results forwarded to the unit commander for disposition.  If retention is not recommended, a request for discharge would be submitted to the State Adjutant General.  When a medical 
condition was incurred in line of duty, the procedures of National Guard Regulation 40-3 would apply.  Discharge action would not be affected pending final disposition of the case.

12.  Army Regulation 600-60 (Physical Performance Evaluation System) covers the Physical Performance Evaluation System (PPES).  It requires Active Army, ARNG, and U.S. Army Reserve (USAR) Soldiers with a permanent profile containing a 3 or 4 in one of the profile serial factors to be evaluated by an administrative screening board designated as the MMRB.  This evaluation is to determine if Soldiers can perform satisfactorily in their primary occupational specialty or specialty code in a worldwide field environment.  This regulation gives the duties and procedures of the MMRB.  It also gives the procedures for processing the decision of the MMRB convening authority to recommend a Soldier for medical reclassification or to refer the Soldier to the Physical Disability Evaluation System (PDES) or the Reserve Component medical disqualification process, as applicable.  Soldiers will appear before an MMRB within 60 days from the date the DA Form 3349 (Physical Profile) is signed by the appropriate approving authority.

13.  The PPES is a program designed to evaluate Soldiers with a permanent numerical designator of 3 or 4 (hereafter referred to as a permanent 3 or 4 profile) in one of the profile serial factors based on their physical ability to perform their duties in a worldwide field or austere environment and recorded on the DA Form 3349.  The PPES establishes the MMRB as an administrative screening board to make this evaluation.  This screening system ensures continuity of effort among commanders, doctors, personnel managers, and the PDES.  It provides the MMRB convening authority with increased flexibility to determine a Soldier’s deployability, reclassification potential, or referral into the PDES (or processing for medical disqualification as applicable to certain Reserve Component cases).

14.  The MMRB evaluation process will not be used as a quality assessment of leadership, degree of technical skill, or promotion potential.  The MMRB recommendations will only be based on an enlisted Soldier’s or warrant officer’s 
physical ability to reasonably perform the duties of his or her primary MOS or of an officer’s physical ability to perform in his or her branch or area of concentration or functional area.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating.  It provides for medical evaluation boards (MEBs), 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.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

16.  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 Veteran's Administration Schedule for Rating Disabilities (VASRD).  Department of Defense Instruction (DODI) 1332.39, and Army Regulation 635-40, appendix B, modify 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge orders should be voided.  He states:

	a.  his discharge was illegal; 

	b.  the WIARNG discharged him as an amputee, but he is not an amputee and the actual reason for his discharge was a limited ROM in his right wrist;

	c.  his ROM measurements were not conducted in accordance with regulations and were not made using a goniometer; and

	d.  his wrist injury was aggravated as a result of his service.

2.  Insofar as the WIARNG incorrectly citing amputation as the reason for his unfitness, that statement is true.

	a.  In a 20 September 1991 memorandum from a Health Systems Specialist in the State Adjutant General’s Office to the WIARNG Personnel Manager, the applicant was recommended for discharge in accordance with paragraph 3-12a (Upper Extremities – Amputation).  This error was not corrected and was carried forward in a 24 September 1991 memorandum from the Director of Personnel and Administration, WIARNG, directing the applicant’s discharge.  The memoranda should have cited paragraph 3-12b (Upper Extremities – Joint ROM) as the reason for discharge.

	b.  In a 12 March 2008 letter from the WIARNG to the applicant, the Adjutant General acknowledged the error occurring in September 1991 and indicated that the correct citation should have been paragraph 3-12b of Army Regulation
40-501.

3.  The incorrect citation of Army Regulation 40-501 was an administrative error of no consequence.  It is noted the applicant’s discharge order cites only National Guard Regulation 600-200, paragraph 8-26y which provides for discharge based upon “Medically unfit for retention standards of chapter 3, Army Regulation
40-501.”  The discharge order was and is correct.

4.  The applicant alleges that his ROM measurements were not conducted using a goniometer and, therefore, were not in accordance with Army regulations.  There is no evidence in the record to indicate how the ROM measurements were obtained and the applicant has provided no evidence to support his contention that the ROM measurements were not done correctly.  Absent such evidence, there is a presumption of regularity in the taking of the ROM measurements.

5.  The applicant contends that his wrist injury, which initially occurred during his civilian employment, was aggravated by his WIARNG service.  He alleges that he was ordered to perform work which would have violated his civilian doctor’s medical advice and, when he showed his lieutenant his civilian doctor’s advice, the lieutenant tore it up and made him lift objects which aggravated his condition. The applicant offers no evidence in support of his contention that his wrist injury was service-aggravated, or his allegation concerning his lieutenant.

6.  The applicant offers a chronology of appointments with a civilian doctor which would indicate that his wrist injury was, at first, healing, then suffered a setback.  The civilian doctor attributes the setback – the nonunion of bones in the wrist – to an officer disregarding his (doctor’s) medical advice and ordering the applicant to lift heavy objects.  The doctor has no proof of this allegation; he is merely repeating what the applicant alleged to have happened.

7.  In 1995, the applicant, a U.S. Postal Service employee, was pursuing a workman’s compensation claim with the U.S. Department of Labor.  During his clinical evaluation by a medical doctor and Fellow of the American Academy of Orthopedic Surgeons (FAAOS), the doctor stated the applicant exerted little effort during ROM testing and that he was clearly exaggerating his medical condition.

8.  The applicant was discharged in accordance with National Guard Regulation 600-200, paragraph 8-26y after having been found medically unfit for retention in accordance with Army Regulation 40-501, paragraph 3-12b.  Therefore, his discharge was not illegal.

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)                                         AR20090003497



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ABCMR Record of Proceedings (cont)                                         AR20090003497



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