IN THE CASE OF:	  

		BOARD DATE:  10 January 2012

		DOCKET NUMBER:  AR20110009964 


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 date of separation from the Army National Guard (ARNG) and correction of the reason for his separation to medical.

2.  He states his separation date is shown as 8 November 2001, but he was still a drilling member of his unit after that date.  A DA Form 4187 (Personnel Action) dated 24 August 2002 shows he was still in the ARNG.  The DA Form 4187 shows the authority for his separation was National Guard Regulation 40-501 (Standards of Medical Fitness - ARNG), chapter 3, paragraph 3-41e, 2, 3.  He states his discharge should be the date of his [discharge] orders, which is 9 October 2002.  

3.  He further states he was given Department of Veterans Affairs (VA) compensation of 90 percent (%) service connected and granted entitlement to the 100% rate effective 28 May 2003 because he was unable to work due to his service-connected disabilities.  He was granted the 100% rate 7 months after he was discharged.  He states "they" saw he had 20 "good years" [of service for retirement], skipped sending him to a Physical Evaluation Board (PEB) "for a percentage," and transferred him to the Retired Reserve.

4.  He provides: 

* a DD Form 294 (Application for Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States)
* a DA Form 4187
* a Medical Evaluation Board (MEB) recommendation
* a Discharge Review Data Sheet
* a request for medical discharge
* a recommendation for discharge from his commander
* a note to his commander stating his reasons for requesting a medical discharge
* his National Guard Bureau Form 22E (Report of Separation and Record of Service)
* discharge orders
* a VA Rating Decision and related documents
* pages from The National Academies Press website
* service medical records
* Findings and Recommendations of the State Medical Duty Review Board (MDRB)
* a line of duty determination
* VA medical records
* a VA Decision Review Officer Decision
* documents related to his Notice of Disagreement with his VA rating

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 official military personnel file in the interactive Personnel Electronic Records Management System (iPERMS) contains very few records.  This case is being considered using the four documents available in iPERMS and the documents he provides.  

3.  The applicant served in the Regular Army (RA) from 3 June 1982 to 3 August 1992.  On 4 August 1992, he enlisted in the ARNG.  

4.  On 3 December 2001, he was notified he had completed the required years of service to be eligible for retired pay at age 60.  

5.  On 9 October 2002, the Alabama ARNG (ALARNG), State Military Department, Personnel Service Branch, Montgomery, AL, issued Orders 283-044 honorably discharging him from the ARNG and assigning him to the Retired Reserve effective 8 November 2001.  The authority for the action was National Guard Regulation 600-200 (Enlisted Personnel Management), paragraphs 8-26j(1) and 8-27u and the confirmed verbal orders of the commanding officer.

6.  His NGB Form 22 shows he was honorably discharged effective 8 November 2001 and transferred to the Retired Reserve.  Item 23 (Authority and Reason for Discharge) shows the authority for his discharge was Orders 283-044 and National Guard Regulation 600-200, paragraphs 8-26j(1) and 8-27u.

7.  The available records do not include documentation of his attendance at weekend drills with his unit subsequent to the effective date of his discharge.

8.  He provides:

	a.  Service medical records showing he sought treatment for a variety of conditions during his RA service.  These records do not show any of the conditions were found to be unfitting for the purpose of retention on active duty.  These records also include an MDRB recommendation, dated 12 July 2001, showing he was found fit for military duty with a diabetic letter, and MDRB findings and recommendations, also dated 12 July 2001, showing he could be retained with his unit as a non-deployable asset.

	b.  A handwritten note, dated 3 November 2001, to his commander in which he listed several reasons for his medical retirement.  He indicated he had diabetes mellitus controlled by hypoglycemic drugs, a restricted diet, and exercise.  In addition to diabetes mellitus, he stated he had:

* uncontrolled hypertension (high blood pressure)
* two hernia repairs and another pending
* anterior cruciate ligament (ACL) reconstructive surgery on his left knee
* hyperlipidemia
* symptoms from a fracture of his nasal bone and a surgical repair done in 1985
* chronic sinusitis
* bronchitis
* pes planus
* tinea pedis
He stated he wished to have 1 and 2 December 2001 as his last drill dates or to drill until a decision had been made on his medical retirement.

	c.  A handwritten note, dated 5 March 2002, in which he requested a medical discharge based on several disabling conditions and based on the fact that he was a non-deployable asset.  He stated he had:

* diabetes mellitus
* post-traumatic stress disorder (PTSD)
* high blood pressure
* chronic sinusitis
* three ventral hernia repairs
* hyperlipidemia
* chronic liver disease
* chronic diarrhea

He stated he was 40% disabled at the time and was also in the process of completing a disability retirement package from his job with the VA.

	d.  A memorandum, dated 7 April 2002, from his commander to The Adjutant General, ALARNG, recommending he be discharged based on his medical conditions.

	e.  A memorandum, dated 20 May 2002, subject: Medical Evaluation Board Recommendation, showing the Office of the Adjutant General, Alabama State Military Department, informed him an MDRB had reviewed his medical records after referral from his annual medical screening or physical examination.  

		(1) The MDRB recommended his separation from the ALARNG as medically unfit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 3-41e, 2, 3.  The memorandum stated his separation processing would be in accordance with National Guard Regulation 600-200.  The memorandum also stated records indicated he had 20 years of creditable service; therefore, he was eligible for a "medical retirement."  

		(2)  He was informed of his right to appeal the MDRB decision within 60 days of receipt of notification.  The available records do not show he concurred with or appealed the decision of the MDRB. 

	f.  A DA Form 4187, dated 24 August 2002, showing he and his commander initiated a request for his discharge and transfer to the Retired Reserve.  Section IV (Remarks) of the form shows the request for his discharge was in accordance with National Guard Regulation 40-501, paragraphs 3-41e, 2, 3.  (National Guard Regulation 40-501 does not include paragraphs 3-41e, 2, 3.  It appears the intended reference was Army Regulation 40-501.)  

	g.  A VA Rating Decision, dated 7 April 2009, showing the VA granted service connection for the following conditions: 

* sinusitis with headaches
* status post umbilical hernia repair
* allergic rhinitis, deviated nasal septum, status post septoplasty
* bronchitis
* hypertension
* bilateral pes planus
* osteoarthritis, left knee, status post ACL reconstruction
* glaucoma and hypertensive retinopathy
* right carpal tunnel syndrome
* acne
* erectile dysfunction associated with hypertension
* tinea curis (claimed as rash in groin area)

The VA found the following conditions not service connected and/or not subject to compensation:

* inflammation/arthritis of the joints of the right hip and shoulders
* residuals of injury to the cervical spine
* pharyngitis
* hiatal hernia/reflux
* elevated liver enzymes
* high cholesterol
* scars
* diabetes mellitus, type II
* migraine headaches
* narcolepsy (claimed as sleep disorder)
* Bell's palsy
* carpal tunnel syndrome, left wrist
* traumatic brain injury
* PTSD
* depression and anxiety

	h.  A letter, dated 14 April 2009, from the VA notifying him his overall or combined service-connected disability rating was 90%, and that he had been granted the 100% rate effective 28 May 2003 because he was unable to work due to his service-connected disabilities.

	i.  A VA Decision Review Officer Decision, dated 24 October 2011, showing he was granted service connection for carpal tunnel syndrome, left wrist, with an evaluation of 20%.

	j.  Pages from The National Academies Press website showing excerpts from a book, entitled Review of the U.S. Army's Health Risk Assessments for Oral Exposures to Six Chemical-Warfare Agents.  On a table excerpted from the book, he has highlighted five locations summarizing chemical materiel thought to be located at nonstockpile sites.  The locations he highlighted are Anniston Army Depot, Fort McClellan, Pueblo Army Depot, Fort Benning, and Camp Shelby.

9.  Army Regulation 40-501, paragraphs 3-41e, 2, 3, states miscellaneous conditions and defects not mentioned elsewhere in the chapter are causes for referral to an MEB, if the conditions (individually or in combination) result in interference with satisfactory performance of duty as substantiated by the individual’s commander or supervisor and the individual’s health or well-being would be compromised if he or she were to remain in the military service.

10.  Chapter 10 of Army Regulation 40-501 sets basic policies, standards, and procedures for medical examinations and physical standards for the ARNG.  For the ARNG, chapter 3 is interpreted as the standard for retention.  Soldiers not meeting the standards of chapter 3 are considered to not meet retention standards and will require review by the State Surgeon and referral to the MDRB, in accordance with this regulation, in order to be retained in the Army National Guard of the United States (ARNGUS).  

11.  National Guard Regulation 600-200 governs procedures for enlisted personnel of the ARNG.  

   a.  Paragraph 8-26j of the version in effect at the time stated to refer to Army Regulation 135-178 (Enlisted Administrative Separations), chapter 12, for discharge of Soldiers medically unfit for retention under the provisions of Army Regulation 40-501, chapter 3.  

	b.  Paragraph 8-27 of the version in effect at the time provided the reasons for discharge from the State ARNG.  Soldiers separated under paragraph 8-27u would be discharged and transferred to the Retired Reserve if they were not yet age 60.

12.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNGUS and the U.S. Army Reserve (USAR).  It applies to all enlisted Soldiers of the ARNGUS and the USAR who are not performing fulltime active duty in the U.S. Army.  The policy for discharge of Soldiers medically unfit for retention was moved from chapter 12 to chapter 15 in the version of the regulation in effect at the time.  Chapter 15 stated discharge would be accomplished when it had been determined that a Soldier was no longer qualified for retention by reason of medical unfitness under the provisions of Army Regulation 40-501, unless the Soldier requested and was:

a.  Granted a waiver under Army Regulation 40-501, as applicable.

	b.  Determined fit for duty under a non-duty related PEB fitness determination under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	c.  Eligible for transfer to the Retired Reserve (Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers)).

13.  Chapter 15 of Army Regulation 135-178 further stated Soldiers who did not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training would be processed as specified in Army Regulation 635-40, if otherwise qualified.

14.  Army Regulation 635-40 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.  The regulation states, in pertinent part, that under the laws governing the PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line of duty criteria to be eligible to receive retirement and severance pay benefits: 

	a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

	b.  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must 

15.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  With regard to the type of discharge the applicant received, there is no evidence showing he was improperly denied referral to a PEB, nor is there evidence showing he incurred any unfitting medical conditions while he was entitled to basic pay that would have required processing through the PDES.  He was found medically unfit for retention by an MDRB and had completed 20 years of qualifying service for a Reserve retirement.  As a result, he was properly discharged from the ARNG and transferred to the Retired Reserve per the governing regulations.  

2.  The fact that the VA granted him a service-connected disability rating shortly after his discharge has no bearing in this case.  A VA service-connected disability rating does not establish entitlement to a "medical discharge" from the ARNG.  The VA awards ratings because a medical condition is "service-connected" and affects the individual's civilian employability.  Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  

3.  The effective date of the applicant's discharge is questionable, considering the orders discharging him from the ARNG were published nearly a year after he submitted his request.  However, the available records do not show he was serving in an active status with his ARNG unit after the effective date of his discharge.  In the absence of such documentation, there is an insufficient basis upon which to determine if an error was made in establishing the effective date of his discharge.

4.  In view of the foregoing, there is an insufficient basis upon which to grant the relief he has requested.

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)                                         AR20110009964





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ABCMR Record of Proceedings (cont)                                         AR20110009964



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