IN THE CASE OF:	  

		BOARD DATE:  2 August 2012

		DOCKET NUMBER:  AR20110015663 


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 military record by issuing him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) and retirement benefits which is, in effect, a request for reconsideration of his earlier application to the Board requesting his 28 October 1991 discharge from the Wisconsin Army National Guard (WIARNG) be voided.

2.  The applicant states documents related to his discharge based on being an amputee were not corrected and resulted in his receiving a reentry eligibility (RE) code of 3 on his National Guard Bureau (NGB) Form 22 (Enlisted Record and Report of Separation).

3.  The applicant provides a Congressional Inquiry packet with the 8 enclosures identified in the Member of Congress letter in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090003497, on 1 October 2009.

2.  During its original review of the case, the Board found an error had been made in that the WIARNG originally cited amputation as the reason for the applicant's medical unfitness in memoranda, dated 20 September 1991 and 


24 September 1991.  It further determined the correct reason for medical unfitness should have been Upper Extremities - Joint Range of Motion (ROM).

3.  The Board further found the State Adjutant General acknowledged the error in the reason for medical unfitness on 12 March 2008 and confirmed the correct authority for discharge as Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-12b (Upper Extremities - Joint ROM).  The Board concluded the authority for separation cited indicating amputee was an administrative error of no consequence and that the discharge orders issued by the WIARNG cited National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-28y, that provides for discharge based upon "Medically unfit for retention standards of chapter 3, Army Regulation 40-501" which was and remains correct.  The Board finally concluded the applicant was properly 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.

4.  The applicant provides a Congressional Inquiry packet as new evidence in support of his current request.  The supporting letter provided by a Member of Congress cites National Guard Regulation 600-200, paragraph 8-14b that indicates if a Soldier is discharged in error and there is no fraud, the individual will be reenlisted if he/she is otherwise qualified and so desires.  This Member of Congress states the applicant believes he was inappropriately discharged and he would have completed his service had he been given the opportunity to do so.  Given the multiple errors made by the WIARNG in 1991, the applicant is requesting issuance of a 20-Year Letter and associated benefits.

5.  A Standard Form (SF) 93 (Report of Medical History) completed by the applicant with his examining physician on 16 March 1991 contains a notation from the applicant indicating he had limited motion in his right hand from a bone fusion.  An SF 88 (Report of Medical Examination), dated 16 March 1991, contains a notation regarding ROM limitations in his right wrist in the clinical evaluation portion of the form.  The examining physician noted the ROM limitations in the summary of defects portion of the form and finally found the applicant was not qualified for retention under the provisions of Army Regulation 40-501, paragraph 3-12b.

6.  Orders 212-030, issued by the Department of Military Affairs, Office of The Adjutant General, Madison, WI, dated 28 October 1991, directed the applicant's discharge on 23 October 1991, under the provisions of National Guard Regulation 600-200, paragraph 8-26y.  The NGB Form 22 issued to the applicant on 23 October 1993 shows he was discharged from the WIARNG in the rank/grade of sergeant (SGT)/E-5 after completing 17 years, 4 months, and 12 days of creditable service for pay.  It further shows he was separated under the provisions of National Guard Regulation 600-200, paragraph 8-26y, by reason of "medically unfit for Retention Standards of chapter 3, Army Regulation 40-501" and assigned an RE-3 code based on the authority and reason for discharge.

7.  Army Regulation 40-501 prescribes medical fitness standards for retention and separation including retirement in chapter 3.  Paragraph 3-12b outlines the standards for Upper Extremities (ROM).  It outlines the standards for the wrist as a total range extension plus flexion of 15 degrees.

8.  National Guard Regulation 600-200 establishes standards, policies, and procedures for the management of the Army National Guard (ARNG) and the Army National Guard of the United States (ARNGUS) enlisted Soldiers which includes enlisted separation.  Paragraph 8-26y of the version of the regulation in effect at the time of the applicant's discharge provided the authority for the separation of members who were medically unfit for retention under the provisions of Army Regulation 40-501.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be issued a 20-Year Letter and provided associated benefits has been carefully considered.  However, there remains an insufficient evidentiary basis to support granting the requested relief.

2.  The evidence of record confirms that although there were administrative errors made in documents related to the applicant's discharge processing, his discharge was proper and equitable and based on his being determined to be medically unfit for retention by proper medical authority.  The record contains an SF 88 and SF 93 that indicate the applicant had ROM limitations that rendered him medically unfit for retention.  In the SF 93 the applicant himself noted he had limited motion in his right hand from a bone fusion.  The SF 88 contains the examining physician's finding that the applicant was medically unfit for retention based on ROM issues in his right wrist.

3.  In view of the medical evidence it is clear the applicant was medically unfit for retention at the time of his discharge processing.  As a result, there is an insufficient evidentiary basis to grant the requested relief and/or to amend the original Board decision in this case.  Therefore, it would not be appropriate to 
credit the applicant for service he did not perform in order to issue him a 20-Year Letter, or to provide him benefits he did not earn.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090003497, dated 1 October 2009, or to grant the specific relief requested in his current application.



      __________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)                                         AR20110015663



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ABCMR Record of Proceedings (cont)                                         AR20110015663



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