BOARD DATE:	  18 September 2012

		DOCKET NUMBER:  AR20120006587 


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 to be medically retired from the military.

2.  The applicant states his paperwork shows he should have been medically retired.  His “unit is unfit to discharge troops, without medical retirement.”  He feels as if he was used and tossed away by his Arkansas Army National Guard (ARARNG) unit.  He was wrongly discharged and he should have been medically retired.

3.  The applicant provides:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 6 September 2008 and 15 April 2005
* ARNG discharge orders
* Department of Veterans Affairs (VA) rating decision(s) and medical documents, including progress notes, radiology reports, and consult sheets

CONSIDERATION OF EVIDENCE:

1.  The applicant he was born on 30 December 1981.

2.  He enlisted in the ARARNG on 25 March 1999.  He entered active duty for training (ADT) on 5 July 2000 and he completed his required training  for award of military occupational specialty (MOS) 91P (X-ray Specialist).  He was honorably released from ADT on 25 October 2001 at the completion of required active service.  He was transferred to an ARNG unit in Lake Village, AR.

3.  On 12 October 2003, he was ordered to active duty in support of Operation Iraqi Freedom (OIF).  He subsequently served in Kuwait/Iraq from 14 March 2004 to 31 March 2005.  He was honorably released from active duty on 15 April 2005 at the completion of required active service.

4.  He was promoted to the rank/grade of sergeant (SGT)/E-5 on 20 October 2006.

5.  On 2 July 2007, he was ordered to active duty in support of OIF.  He executed a 6-year extension in the ARNG on 17 March 2008.   He subsequently served in Kuwait/Iraq with the 213th Area Support Medical Company as a radiology technician from 4 July 2008 to 14 August 2008.  

6.  On 6 September 2008, he was honorably released from active duty at the completion of required active service and he was transferred to his ARNG unit in Little Rock, AR.

7.  His DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) for the period 2 July 2007 through 1 July 2008 shows he was rated as:

* Excellent in the areas of "Competence" and "Physical Fitness and Military Bearing" with positive comments regarding his MOS competency and physical fitness
* An overall potential as "Fully Capable"
* An overall performance and potential as "Superior"

8.  His DA Form 2166-8 for the period 17 June 2008 through 16 June 2009 shows he was rated as:

* Success in the areas of "Competence" and "Physical Fitness and Military Bearing" with positive comments regarding his MOS competency and physical fitness
* An overall potential as "Fully Capable"
* An overall performance and potential as "Superior"

9.  His record contains a memorandum authored by a medical evaluation board (MEB) analyst at the Office of the Adjutant General, ARARNG, dated 15 August 2010, that states:

* [Applicant] was a Soldier in the MEB process as of 8 June 2009
* Due to various scheduled MEBs missed and/or cancelled appointments, [Applicant's] MEB was terminated by Fort Sill, OK
* This memorandum serves as official notice that this Soldier can be processed for discharge due to non-compliance to complete medical board process

10.  On 10 September 2010, by certified mail, the applicant's company commander notified the applicant that he was initiating action to separate him from the ARNG in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 36u, by reason of failing to obtain a required physical.

11.  The available evidence shows the applicant received the notification memorandum on 14 September 2010.  On 30 September 2010, he:

* Acknowledged receipt of the separation memorandum
* Exercised his right to consult with counsel who advised him of the basis of the separation action
* Indicated he desired appearance before a hearing and that if he failed to do so that failure would constitute a waiver of his right
* Waived his right to counsel at the board hearing
* Indicated he has, or will retain, civilian counsel
* Waived his right to submit written statements

12.  The applicant's immediate commander subsequently initiated separation action against the applicant citing his failure to obtain the required physical.  

13.  The intermediate and senior commanders recommended approval of his separation.

14.  Orders 301-823, issued by the Military Department of Arkansas, Office of the Adjutant General, dated 28 October 2010, discharged the applicant from the ARNG and as a reserve of the Army under the provisions of NGR 600-200, paragraph 6-36u, effective 10 October 2010, with an Honorable Discharge Certificate.  The National Guard Bureau (NGB) Form 22 he was issued at the time shows he was discharged under the provisions of NGR 600-200, paragraph 6-35l(8) by reason of being medically unfit for retention. 

15.  His NGB Form 23B (ARNG Retirement Points History Statement) shows he completed 11 years of qualifying service for non-regular retirement.

16.  His complete service medical records are not available for review with this case.  The available documents do not show:
* he incurred an illness or injury while on active duty
* the reason he was undergoing an MEB at Fort Sill
* he was issued a permanent physical profile that restricted him from performing the duties required of his military specialty and grade
* a DA Form 2173 (Statement of Medical Examination and Duty Status)
* a line of duty determination was made related to any injuries or illnesses
* medical doctors recommended his entry in the Physical Disability Evaluation System (PDES)
* he underwent an MOS/Medical Retention Board
* he was referred to a physical evaluation board (PEB)
* a fit for duty medical board 

17.  He submitted a binder containing his VA medical records, and selected progress notes, charts, examinations, reports, and notes.  The records he submitted show he was awarded service-connected disability compensation by the VA for post-traumatic stress disorder, migraine headaches, and bronchitis.

18.  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.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line-of-duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty for training.  

19.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, retention, and separation.  Paragraph 9-12 states that Reserve Component (RC) Soldiers with a non-duty related medical condition that are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness.  
The process was designed to give the Soldier with a non-duty related impairment the option of requesting a PEB solely for the purpose of a fitness determination, but not for a determination of eligibility for disability benefits.

20.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of active service and a disability rated at less than 30%.  Section 1201 provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30%.

21.  NGR 600-200 establishes standards, policies, and procedures for the management of the ARNG Soldiers.  Chapter 6 provides for separation of ARNG Soldiers.

	a.  Paragraph 6-35l(8) states separation is warranted if the Soldier is medically unfit for retention per Army Regulation 40-501.  Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination.  If the Soldier refuses to report as directed the commander may proceed with administrative separation action under paragraph 6-36u.  Commanders who do not recommend retention will request the Soldier’s discharge.  When medical condition was incurred in line of duty, the procedures of another regulation will apply.  Discharge will not be ordered while the case is pending final disposition.  This paragraph also includes those Soldiers who refuse or are ineligible to reclassify into a new MOS.

	b.  Paragraph 6-36u states administrative separation is warranted if a Soldier fails to obtain required physical per Army Regulation 40-501.  The Soldier will be notified in writing of the requirement to obtain a physical, and given 90 days after the letter is mailed to comply with this requirement.  Commander can authorize an extension of up to 60 days for extenuating circumstances.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged from the ARNG after he failed to obtain a physical examination.  The complete circumstances of his discharge are not available for review with his case.

2.  The VA diagnosed him with multiple maladies, and awarded him service-connected disability compensation for PTSD, migraine headaches, and bronchitis.

3.  However, there is no evidence that any of his medical conditions occurred while on active duty, that a line of duty determination was made for any of his conditions, or that any of his ailments rendered him unfit for service.  Additionally, the circumstances of his referral to the Fort Sill MEB are not available for review with this case.  Nevertheless, one document he provides shows he missed or cancelled several appointments related to his MEB that ultimately resulted in the termination of his MEB.

4.  In any case, in order to be referred to the PDES, unfitting medical conditions must have been incurred while the member was entitled to basic pay.  In this case, there is nothing in his record that shows:

* he incurred an illness or injury while on active duty
* he was issued a permanent physical profile that restricted him from performing the duties required of his military specialty and grade
* a DA Form 2173 was initiated or processed
* a line of duty determination was made related to any injuries or illnesses
* medical doctors recommended his entry in the PDES
* he underwent an MOS/Medical Retention Board

5.  Additionally, it is clear from his evaluation reports, extension, and unit participation that his medical conditions did not affect his ability to perform in his grade and MOS.

6.  Furthermore, the applicant does not explain what specific medical condition, injury or illness, rendered him physically unfit and required that he should be medically retired.

7.  In view of the foregoing evidence, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20120006587



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ABCMR Record of Proceedings (cont)                                         AR20120006587



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