IN THE CASE OF:	  

		BOARD DATE:	  22 March 2012

		DOCKET NUMBER:  AR20110019822 


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 reconsideration of his earlier request for 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.  As a new issue, the applicant requests reconsideration of his Department of Veterans Affairs (VA) rating decision to increase his service-connected disability rating and/or include additional medical conditions.

3.  The applicant states:

* he sustained a closed fracture of his right tibia and fibula on 10 January 1988 and his unit was advised to refer him to the nearest active Federal facility for evaluation, treatment, and medical evaluation
* he suffered an injury in the line of duty (LOD) that was severe enough to warrant a pin in his leg to correct alignment and limb length
* he was retained in the Army National Guard (ARNG) after he was injured, but the ARNG mismanaged his injury and failed to medically discharge him which placed him in an unsafe condition during his sea duty
* the separation action by the ARNG allowed him to enlist in the U.S. Navy (USN) – this additional military service exacerbated his medical condition
* the VA applied the wrong law in relation to his application for benefits, but the VA finally awarded him 10-percent service-connected disability compensation for his right leg injury
* the Social Security Administration discredited him by deducting all his USN service

4.  The applicant provides:

* multiple USN records of nonjudicial punishment (NJP) and USN defense counsel's response to the applicant's record of NJP
* USN recommendation and subsequent conviction by a special court-martial with a bad conduct discharge
* USN DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 2 January 1990-10 August 1993
* Michigan ARNG (MIARNG) LOD Investigation, dated 28 July 1988
* MIARNG Report of Injury/Disease, dated 10 January 1988
* MIARNG Physician's Statement, dated 13 July 1988
* Central Michigan Community Hospital Report of Operation, dated 10 January 1988
* Medical Evaluation and Progress Notes, dated 1988
* 1990 MIARNG request for discharge and discharge orders
* leave and earnings statement
* DA Form 428 (Application for Identification Card)
* Standard Form 88 (Report of Medical Examination), dated 9 January 1988
* Standard Form 93 (Report of Medical History), dated 26 October 1989
* Standard Form 88, dated 17 September 1991
* Standard Form 93, dated 17 September 1991
* Dental Health Questionnaire
* various USN medical treatment records, physical profiles, chits, questionnaires, statements, dated 1991-1993
* various VA forms, claims, applications, correspondence, medical records, Separation from
* various forms, letters, and correspondence with and from the Naval Discharge Review Board and the Board for Correction of Naval Records

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 AR20110003182 on 23 August 2011.

2.  With respect to the applicant's request for reconsideration of his VA rating decision and add additional medical conditions, this action is not within the purview of this Board.  The applicant is advised to address VA issues with the VA.

3.  The applicant submits multiple USN, ARNG, and VA documents, many of which were not previously reviewed by the ABCMR.  Therefore, they are considered new evidence and warrant consideration by the Board as an exception to policy.

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

5.  The applicant enlisted in the MIARNG on 19 September 1984 following release or discharge from the USAR and held military occupational specialties 11B (Infantryman) and 77F (Petroleum Supply Specialist).  He was assigned to Company A, 1st Battalion, 125th Infantry, Saginaw, MI.

6.  On 9 January 1988, he underwent a periodic physical examination and he was found qualified for retention.

7.  On 10 January 1988, the applicant suffered a closed fracture of his right tibia while performing inactive duty for training.  A Report of Injury/Disease, dated 10 January 1988, and a subsequent DA Form 2173 (Statement of Medical Examination and Duty Status), dated 2 February 1988, show:

* he fell down when he attempted to avoid a dry patch in the training area while learning to cross-country ski in preparation for winter annual training
* he was taken to Central Michigan Community Hospital (nearest treatment facility) for treatment
* his injury was considered to have been in the LOD and the LOD action was approved on 25 July 1988

8.  On 6 June 1988, the Chief, Office of the Army Surgeon, National Guard Bureau, informed the Adjutant General, MIARNG, by memorandum 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 a medical/physical evaluation board, if appropriate.

9.  On 13 July 1988, a medical doctor examined the applicant.  An MIARNG Physician's Statement shows the medical doctor 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.

10.  On 23 October 1988, the applicant submitted a DD Form 368 (Request for Discharge or Clearance from Reserve Component) requesting discharge from the ARNG for the purpose of enlisting in the USN.  He was granted clearance for his enlistment in the USN on 25 October 1989.

11.  On 26 October 1989, he underwent a physical at the Military Enlistment Processing Station, Lansing, MI, for the purpose of enlistment in the USN.  The front page of a Standard Form 93 prepared by the applicant 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.

12.  The front page of a Standard Form 89 prepared also on 26 October 1989 for the purpose of the applicant's enlistment in the USN shows item 37 (Lower Extremities) is circled and the examining physician noted "right leg – full range of motion."

13.  The applicant was discharged from the ARNG on 27 November 1989.  His NGB Form 22 shows he 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 U.S. Naval Reserve (USNR).

14.  His NGB Form 22 shows 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.

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

16.  A medical document, dated 22 July 1991, shows the applicant was previously treated by closed reduction of the fracture.  Treatment options were discussed with him and he elected to continue with closed treatment.  This document shows he was most recently seen on 11 July 1988 and determined to be ambulatory with a right limp.  He had right lower extremity full function with a slight limb length inequality of about 5 millimeters.  X-rays showed satisfactory healing of his fracture.

17.  He accepted NJP on multiple occasions as follows:

* 28 October 1990 for being absent without leave, unauthorized absence, and disobeying orders
* 17 April 1991 for unauthorized absence
* 29 April 1991 for missing movement
* 19 September 1991 for disobeying orders and communicating a threat

18.  He was ultimately convicted by a special court-martial and he was discharged from the USN on 10 August 1993 with a bad conduct discharge.

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

20.  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 may reasonably 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 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 and treatment.  On 13 July 1988, the examining physician found the applicant was temporarily 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.  The doctor further indicated the applicant would be fit for normal military duty in October 1988.

2.  On 23 October 1989, more than 1 year after being declared fit for normal duty, the applicant requested discharge from the ARNG for the purpose of enlisting in the USN.  He underwent a medical examination, he indicated his present health was "good," and the examining physician found his right leg had full range of motion.  He was medically cleared for enlistment in the USN.

3.  There is no evidence that shows he was physically unable to perform the duties required of his grade, rank, or specialty when he was discharged from the ARNG.  Additionally, there is no evidence he suffered from a disabling condition while serving in the ARNG that would have warranted his separation processing through medical channels.

4.  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 may reasonably be expected to perform because of his or her office, grade, rank, or rating.

5.  In this case, the applicant was honorably discharged from the ARNG on 27 November 1989 for enlistment in the USN.  In fact, he underwent a medical examination just prior to discharge from the ARNG for the purpose of enlistment in the USN.  This examination did not find him medically unqualified for further service.  This further proves he was capable of performing the duties required of his grade and military specialty at the time of his separation from the ARNG.  Therefore, he is not entitled to the 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 the overall merits of this case are 

insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110003182, dated 23 August 2011.



      ___________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)                                         AR20110019822



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ABCMR Record of Proceedings (cont)                                         AR20110019822



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