IN THE CASE OF:	  

		BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110018340 


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 change of his honorable discharge to a medical retirement or discharge.

2.  The applicant states:

* he should not have been discharged from the New Jersey Army National Guard (NJARNG) without his case going before a medical evaluation board (MEB) based on his injuries
* he desires his records be reviewed by an MEB
* he was injured at the time of discharge and he is still under a doctor's care
* the ARNG was supposed to send his records to an MEB or physical evaluation board (PEB); however, this did not happen
* he received an injustice by being released from active duty without being medically cleared
* he already had an honorable discharge from the U.S. Navy at the time of his enlistment
* he enlisted as an E-4 but when he got to his unit, he discovered his rank had been reduced to an E-3 due to an error by the recruiter
* his unit was being mobilized to go to Iraq at the time he was discharged; however, he had not recovered from a back injury incurred while in training at Fort Sill, OK


* he informed the medical officer at the Medical Mobilization Unit at Fort Dix of his current injury and status and that he was seeking care at the Department of Veterans Affairs (DVA) for the injury
* a formal notation was placed in his medical record and he was told by the doctor that he was not cleared for duty or mobilization and that he had to continue to see the doctor at the DVA and get clearance
* he was never cleared by any Naval or civilian institution
* he is still receiving care and compensation for the same injury 
* he should have been offered the benefit and compensation of a military retirement since he spent most of his life in the military service
* his injury has changed his life and the lives of his loved ones forever
* he can no longer perform his job due to the pain caused by the injury
* he is on muscle relaxers and pain pills to subdue the pain

3.  The applicant provides:

* two self-authored statements
* Orders 5309009, issued by the Military Entrance Processing Station (MEPS), Fort Dix, NJ, dated 5 November 2005
* extracts from his military medical records

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 complete military service and medical records are not available for review.  However, there were sufficient documents in the interactive Personnel Electronic Records Management System (iPERMS) record, along with documents provided by the applicant, to conduct a fair and impartial review of this case.


3.  The applicant's available record shows he enlisted in the U.S. Naval Reserve (USNR) on 11 September 1981.  On 28 February 1982, he was discharged from the USNR and on 1 March 1982, he enlisted in the Regular U.S. Navy (USN).  He continued to serve on active duty until he was released from active duty on
28 November 1986 and he was transferred to the USNR.  He was discharged from the USNR on 29 February 1988.  He completed 4 years, 8 months, and
28 days of creditable active service.

4.  On 14 August 1990, he enlisted in the NJARNG as a hospital corpsman in the rank/grade of private first class (PFC)/E-3.  On 13 August 1991, he was honorably discharged at the expiration of his service obligation.  The National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service) he was issued at the time shows he was discharged in the rank/grade of PFC/E-3.  He completed 1 year of net service this period with 1 year, 8 months, and 21 days of prior Reserve Component (RC) service and 4 years, 8 months, and 28 days of prior active service.

5.  After having had prior honorable service in the USNR, USN, and NJARNG, the applicant enlisted in the NJARNG on 27 July 2005.

6.  Orders 5309009, dated 5 November 2005, ordered the applicant to initial active duty for training (IADT) for Warrior Training Course (WTC) with a reporting date of 18 January 2006.

7.  The applicant provides:

	a.  A WTC Sick Slip, dated 21 July 2006, that shows he was seen for a rash, and back and neck pain.  The form shows the applicant was given a limited amount of physical conditioning, advised not to lift/carry items greater than
30 pounds, and not to wear his ruck sack for more than 10 minutes.  These limitations were effective through 23 July 2006.

	b.  A DA Form 5181 (Screen Note of Acute Medical Care), dated 9 August 2006, that shows he sought treatment for back pain and numbness in his face.

	c.  A Standard Form (SF) 600 (Chronological Record of Medical Care), dated 9 August 2006, that shows he complained of back pain, numbness in his face, and neck pain that had been going on for 3 weeks.  He was placed on light duty until what appears to be another scheduled appointment.


	d.  A letter from the NJARNG, Joint Force Headquarters Medical Detachment, Sea Girt, NJ, dated 27 October 2007, that shows the entry:

*	The following medical findings were determined:  "back pain"
*	History:  "injury at AT (annual training).  LOD (line of duty) done"
*	Examination:  "NA (not applicable)"
*	Impression/Recommendations:  "re-evaluation"

8.  Orders 086-060, issued by the State of New Jersey, Department of Military and Veterans Affairs, Trenton, NJ, dated 26 March 2008, discharged the applicant from the ARNG effective 7 March 2008 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph
8-35d(4), with an uncharacterized characterization of service.

9.  His iPERMS record shows he was involuntarily discharged due to erroneous entry.

10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment Regular Army, USAR, and ARNG.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment.  This regulation states that recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are required to process a request for waiver under the provisions of Army Regulation 601-210, chapter 4.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 7, paragraph 7-15, provides guidance on erroneous enlistments, 
reenlistments, or extensions.  When it is discovered that a Soldier's enlistment or extension is erroneous because he/she failed to meet the qualifications for enlistment, the unit commander will initiate action to obtain authority to retain, discharge, or release the Soldier from active duty or active duty training, as appropriate based upon the erroneous enlistment or extension.  When it is deemed that the enlistment or extension is erroneous, separation, when deem appropriate, will be accomplished.  The commander will void the enlistment by 


issuing an order releasing the individual from the custody and control of the Army.  Neither a discharge certificate nor a DD Form 214 will be furnished.

13.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a medical retirement or medical discharge was carefully considered and determined to lack merit.

2.  The applicant contends he enlisted as an E-4; however, his iPERMS record is void of enlistment documents and he does not provide any.  Therefore, it is presumed his enlistment grade was proper at the time of his enlistment.

3.  Although the record shows the applicant complained of back and neck pain, his available record is void and he has failed to provide sufficient evidence showing he had a medical condition warranting evaluation through the Army Physical Disability Evaluation System (PDES).

4.  Orders show he was involuntarily discharged.  The applicant has failed to show he was improperly discharged.  Therefore, it is presumed his discharge was appropriate.

5.  In view of the foregoing, there is no basis for granting the applicant's requests.

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)                                         AR20110018340



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ABCMR Record of Proceedings (cont)                                         AR20110018340



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