IN THE CASE OF:	  

		BOARD DATE:	    23 August 2011

		DOCKET NUMBER:  AR20110003182 


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 correction of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) to show he was discharged based on being medically disqualified for further military service.

2.  The applicant states he sustained a closed fracture of his right tibia and fibula on 10 January 1988.

	a.  On 6 June 1988, the Chief, Office of the Army Surgeon, NGB, advised the applicant's unit to refer him to the nearest active Federal facility for evaluation, treatment, and medical evaluation board (MEB)/physical evaluation board (PEB) processing.

	b.  He was retained in the Army National Guard (ARNG) after he was injured and then discharged without being given the opportunity to sign his separation document.

	c.  The separation action by the ARNG allowed him to enlist in the U.S. Navy.  This additional military service exacerbated his medical condition.  He notes his right leg is one and one-half inch shorter than his left leg.

	d.  He adds that his NGB Form 22 should be corrected to show he was medically disqualified for further service as a matter of justice which will allow him to apply for government benefits.

3.  The applicant provides copies of three separation documents, his line-of-duty investigation (LOD) with supporting medical records, a Naval Discharge Review Board action, and his Department of Veterans Affairs (VA) claim.

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 service records were not available to the Board for review.  However, there were sufficient documents provided by the applicant for the Board to conduct a fair and impartial review of his military service for this case.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 18 September 1979.

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty for training (ADT) on 22 February 1980 and he was honorably released from ADT to his USAR unit on 20 June 1980.  His Reserve obligation termination date was established as 17 September 1985.

5.  The applicant enlisted in the Army National Guard of the United States (ARNGUS) and Michigan ARNG (MIARNG) on 19 September 1984.

6.  A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 2 February 1988, shows the applicant suffered a closed fracture of his right tibia and fibula at 1459 hours, 10 January 1988, while performing inactive duty for training.

	a.  While learning to cross-country ski, the applicant fell down when he attempted to avoid a dry patch in the training area in preparation for winter annual training.

	b.  The injury was considered to have been in the LOD and the LOD action was approved on 25 July 1988.

7.  An NGB memorandum, dated 6 June 1988, subject:  Request for Civilian Non-emergency Medical Care Regarding [Applicant], shows the Chief, Office of the Army Surgeon, informed the Adjutant General, MIARNG, that the applicant's need for an open reduction and internal fixation of his right tibia/fibula might result in his medical disqualification for retention in the ARNG.  He recommended referring the applicant to the nearest active Federal facility for evaluation, treatment, and MEB/PEB processing, if appropriate.

8.  MIARNG Form 40-3 (Physician's Statement), dated 13 July 1988, shows that T____ M. K____, MD, examined the applicant and found him disabled for the performance of his military duties during the period 10 January 1988 to present [13 July 1988] due to the fracture of his right tibia and fibula.   The doctor indicated the applicant would be fit for normal military duty in October 1988.

9.  A DD Form 368 (Request for Discharge or Clearance from Reserve Component), dated 23 October 1989, shows the applicant requested discharge from the ARNGUS and MIARNG for the purpose of enlisting in the U.S. Navy.  Clearance for his enlistment in the U.S. Navy was granted on 25 October 1989.

10.  The front page of a Standard Form 93 (Report of Medical History) prepared by the applicant on 26 October 1989 for the purpose of his enlistment in the U.S. Navy shows he wrote the word "good" in item 8 (Statement of Examinee's Present Health).  The applicant did not provide the reverse side of the form.

11.  The front page of a Standard Form 89 (Report of Medical Examination) prepared on 26 October 1989 for the purpose of the applicant's enlistment in the Navy shows item 37 (Lower Extremities) is circled and the examining physician noted "right leg – full range of motion."  The applicant did not provide the reverse side of the form.

12.  An NGB Form 22 shows the applicant was honorably discharged from the ARNGUS and MIARNG on 27 November 1989 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26b, for enlistment in the Naval Reserve.

	a.  He completed 5 years, 2 months, and 9 days of net service this period; 4 years, 6 months, and 2 days of prior Reserve Component service; 5 months and 29 days of prior active Federal service; and 10 years, 2 months, and 10 days of total service for pay.

	b.  Item 20 (Signature of Person Being Separated) shows the entry "Soldier not available to sign."

13.  A DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows the applicant enlisted in the Naval Reserve for a period of 4 years on 28 November 1989, he was discharged from the Naval Reserve on 1 January 1990, and he enlisted in the Regular Navy for a period of 4 years on 2 January 1990.

14.  National Guard Regulation 600-200 prescribes the criteria, policies, processes, procedures, and responsibilities in managing ARNG and ARNGUS enlisted Soldiers.

	a.  Chapter 8 (Discharge), paragraph 8-26b, states an ARNG enlisted Soldier will be discharged for enlistment, reenlistment, immediate reenlistment, or appointment in any component of the Armed Forces.

	b.  Table 8-2 (Preparation of NGB Form 22) provides item-by item instructions for completing the NGB Form 22.  The instructions for item 20 (Signature of Person Being Discharged) state an individual will sign as his or her name appears in item 2 of the form.  When the individual cannot or will not sign, enter "Soldier not available to sign" or "Solder refused to sign."

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.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was discharged from the ARNGUS and MIARNG based on being medically disqualified for further military service because he sustained a fracture of his right tibia and fibula on 10 January 1988, but was allowed to continue to serve in the ARNG until 27 November 1989.

2.  Records show the applicant suffered a closed fracture of his right tibia and fibula on 10 January 1988.  He was referred to the nearest active Federal facility for evaluation, treatment, and MEB/PEB processing, if appropriate.  On 13 July 1988, the examining physician found the applicant disabled for the performance of his military duties during the period 10 January 1988 to 13 July 1988 due to fracture of his right tibia and fibula.   However, the doctor also indicated the applicant would be fit for normal military duty in October 1988.

3.  On 23 October 1989, more than 1 year after being declared fit for normal duty, the applicant requested discharge from the ARNGUS and MIARNG for the purpose of enlisting in the U.S. Navy.  The applicant underwent a medical examination, he indicated his present health was "good," and the examining physician found the applicant's right leg had full range of motion.  Clearance for his enlistment in the U.S. Navy was granted.

4.  By Army regulation, the mere presence of impairment does not, in and 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.

5.  There is no evidence the applicant was physically unable to fulfill the duties commensurate with his grade, rank, or specialty when he was discharged from the ARNG.  Moreover, there is no evidence the applicant suffered from a disabling condition while serving in the ARNG that would have warranted his separation processing through medical channels.

6.  The applicant was honorably discharged from the ARNGUS and MIARNG on 27 November 1989 for enlistment in the Naval Reserve.  While the applicant did not sign his NGB Form 22, the regulatory guidance allows for the completion of the form in the event the Soldier is not available.  Thus, the entry, "Soldier not available to sign" was entered in item 20.  This does not mean the applicant's discharge was improper.

7.  Records show the applicant enlisted in the Naval Reserve on 28 November 1989 and subsequently enlisted in the Regular Navy on 2 January 1990.

8.  The applicant's medical examination completed just prior to discharge from the ARNG for the purpose of his enlistment in the Naval Reserve did not find him medically unqualified for further service.  If it had, the applicant would not have been accepted for enlistment in the U.S. Navy.  Thus, the evidence of record substantiates the applicant was capable of performing the duties required of his grade, rank, and specialty at the time of his separation from the ARNG.  Therefore, there is no basis for correcting the applicant's records to show he was discharged from the ARNG based on being medically disqualified for further military service.

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 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)                                         AR20110003182



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ABCMR Record of Proceedings (cont)                                         AR20110003182



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