IN THE CASE OF:	

		BOARD DATE:	       4 JUNE 2009

		DOCKET NUMBER:  AR20090003517 


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 medically unfit for retention discharge from the Ohio Army National Guard (OHARNG) be changed and he be reinstated in the OHARNG.   

2.  The applicant states, in effect, that he feels he is fit for duty and should be reinstated in the OHARNG.  He feels that his medical conditions were falsely exaggerated and he was forced into retirement.  

3.  In support of his application, the applicant provides copies of his 2003 and 2007 DA Forms 3349 (Physical Profile), his Medical Record – Consultation Sheet, his NGB Form 22 (National Guard Bureau Report of Separation and Record of Service), a note from his medical doctor, his Pulmonary Function paperwork, his unsigned letter to the Attorney General of Ohio with a Protest Log, and a Privacy Act Release Form.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 19 August 1967.  His military records show he enlisted in the OHARNG, in pay grade E-1, on 28 September 1990, with prior enlisted service in the United States Navy.  He completed training and was awarded military occupational specialty (MOS) 42A, Human Resources Specialist.  

2.  The applicant was issued a Notification of Eligibility for Retired Pay at Age 60, dated 13 August 1996.  

3.  On 1 November 2003, the applicant was given a physical profile with a PULHES profile of 313121 for degenerative disc disease.  He was given assignment limitations and the profile was determined to be permanent.  The profile was approved on the same date.

4.  On 2 November 2003, the findings and recommendation of an MOS Medical Retention Board which convened on 7 June 2003 were approved to retain the applicant in his MOS.

5.  A DA Form 7349 (Initial Medical Review - Annual Medical Certificate), dated 11 March 2006, shows the applicant was taking medications for anxiety and acid reflux.  The physician commented that the applicant required further evaluation and advised him to notify his commander with changes and/or worsening of symptoms.  He was determined to be fit for duty.

6.  On 13 June 2007, the applicant was given a physical profile with a PULHES profile of 313122 for anxiety disorder and degenerative disc disease.  He was given assignment limitations and the profile was approved on the same date.

7.  On 13 June 2007, the applicant was referred for a psychiatric consult for psychological issues, anxiety disorders, and substance abuse.  The report stated that he was doing well and could be deployed.  

8.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records located on the ARNG Integrated Personnel Electronic Records Management System.  However, his NGB Form 22 shows he was honorably separated from the OHARNG, in pay grade E-5, on 6 April 2008, under the provisions of National Guard Regulation 600-200, paragraph 8-35l(8) for being medically unfit for retention.  

9.  The applicant was transferred to the Retired Reserve and was credited with 17 years, 6 months, and 9 days net service in the OHARNG and 21 years,          9 months, and 12 days total service for retired pay.  Item 26 (Reenlistment Eligibility) of his NGB Form 22 shows he was assigned Reenlistment Code (RE) 3.  

10.  The applicant submits a copy of a note from his medical doctor, dated 22 May 2008, wherein the doctor commented that the applicant was able to return to the Army and he had been stable.  He also submits a copy of his Pulmonary Function paperwork, dated 2 June 2008, wherein it was concluded he had a mild obstructive defect and no acute response to bronchodilator.

11.  The applicant further submits a copy of his letter to the Attorney General of Ohio, wherein he stated that he felt his retirement was forced upon him regarding medical problems.  He also stated, in effect, that he has been struggling with employment since November 2007 and he wants to be reinstated back into an active military status.  He also included a log of his protest with the OHARNG with his letter to the Attorney General.

12.  National Guard Regulation 600-200 (ARNG Enlisted Personnel Management), chapter 8, paragraph 8-35, subparagraph l(8), specifies that State ARNG and/or Reserve of the Army 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.  

13.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 provides 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 severe, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.

14.  Department of Defense Directive 1332.18 (Separation or Retirement for Physical Disability), paragraph 3-5, states that any member of the Ready Reserve who is pending separation for a non-duty related impairment or condition shall be afforded the opportunity to enterer the disability evaluation system for a determination f fitness.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was given physical profiles and assignment limitations for degenerative disc disease in 2003 and for anxiety disorder and degenerative disc disease in 2007.  He was eventually found medically unfit for retention in the OHARNG and separated on 6 April 2008.  He was credited with 17 years, 6 months, and 9 days total active service in the OHARNG and 21 years, 9 months, and 12 days total service for retired pay.

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. 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 requested a physical evaluation board to determine his fitness for duty or that, if he did request one, he was unjustly determined to be unfit for duty.  Therefore, he is not entitled to a change to his discharge from the OHARNG and reinstatement to an active status.

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.




      _______ _   XXX_______   ___
               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)                                         AR20090003517



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ABCMR Record of Proceedings (cont)                                         AR20090003517


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