IN THE CASE OF:	  

		BOARD DATE:	  24 September 2009

		DOCKET NUMBER:  AR20090008535 


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 the separation code and narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 August 2007 to show he was medically discharged.

2.  The applicant states that his separation code on his DD Form 214 is listed as "LBK" [completion of required active duty service].  However, a year later he was separated from the Wisconsin Army National Guard (WIARNG) with a medical discharge.

3.  The applicant provides his DD Form 214; a memorandum from the WIARNG, Deputy State Surgeon, dated 16 May 2008; a memorandum from the WIARNG, Deputy Chief of Staff, Personnel/G-1, dated 4 June 2008; and a Defense Finance and Accounting Service (DFAS) Account Statement, dated 5 March 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior active duty service.  He enlisted in the WIARNG on 
28 March 2003.  On 19 April 2006, he was ordered to active duty in support of Operation Iraqi Freedom.  On 9 August 2007, he was honorably released from active duty and returned to the WIARNG.



2.  Item 26 (Separation Code) of the applicant's DD Form 214 shows the entry "LBK" and item 28 (Narrative Reason for Separation) shows the entry 
"completion of required active service."  There are no documents in the 
applicant's records that indicate he could not perform his military duties or that he was referred to the Physical Disability Evaluation System (PDES) during his active duty service.

3.  On 3 May 2008, the WIARNG State Surgeon reviewed the applicant’s medical records for Post-Traumatic Stress Disorder (PTSD), depressive disorder, lower back pain, arthritis, knee and ankle pain, Traumatic Brain Injury (TBI), and severe hearing loss.  From that review, it was determined the applicant did not meet retention standards in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The applicant had the right to a Medical Evaluation Board (MEBD) proceeding, but he waived that right and was processed for medical discharge.

4.  By memorandum from the WIARNG, dated 4 June 2008, the applicant was notified of his medical discharge for failure to meet retention standards.  

5.  Departments of the Army and Air Force, Joint Force Headquarters Wisconsin, WIARNG, Madison, WI, Orders Number 199-508, dated 17 July 2008, honorably discharged the applicant from the Army National Guard and as a reserve of the Army, effective 4 July 2008.

6.  The applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 4 July 2008 shows that he was discharged under the provisions of National Guard Regulation 600-200, paragraph 8-35l(8) with an honorable discharge, by reason of medically unfit for retention, after completing 9 years and 26 days of qualifying service for pay.  

7.  The applicant's military medical records are not available for review.

8.  Army Regulation 635-40, chapter 3 provides 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.  To be found unfit by reason of physical disability, individuals must be unable to perform the duties of his/her grade, rank, or rating.

9.  Army Regulation 635-40 states that when a commander believes that a Soldier of his or her command is unable to perform duties because of physical 

disability, the commander will refer the Soldier to the responsible medical treatment facility.  It also states that commanders of medical treatment facilities who are treating Soldiers may also initiate action to evaluate the Soldier’s physical ability to perform the duties.

10.  Army Regulation 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  (emphasis added)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be changed to a medical discharge.  However, there is no evidence of record that indicates he was ever unable to perform his military duties while on active duty.  It appears that at the time of his release from active duty he was medically fit to perform his duties.  

2.  Evidence of record shows that the applicant was found unfit to perform his military duties by the WIARNG and he was issued a medical discharge, well after his release from active duty.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090008535



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ABCMR Record of Proceedings (cont)                                         AR20090008535



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