BOARD DATE:	  22 August 2013

		DOCKET NUMBER:  AR20120022997 


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, in effect, consideration by a Medical Evaluation Board (MEB) and/or Physical Evaluation Board (PEB) of his injuries and disabilities. 

2.  The applicant states:

   a.  He was discharged early from the Georgia Army National Guard (GAARNG) for medical reasons, but he was never given a proper evaluation of his injuries/disabilities by the military.  He feels that he may be entitled to benefits and/or special retired status.  The state claims they sent a request for him to attend an MEB or a PEB.  The request was sent to an address where he no longer lived, so he never received or signed anything.
   
   b.  In early 2010, after a lengthy and confusing process with little or no communication on the part of his local unit or the GAARNG, he received his military discharge for medical reasons due to injuries he received while on deployment in Iraq.  He also holds a disability rating through the Department of Veterans Affairs (VA) of 50 percent (%).
   
   c.  In 2008, due to the VA rating he was not allowed to attend drills with his unit and he was subsequently sent to the Oglethorpe National Guard Armory for a medical evaluation at which point he was declared "unfit for duty" and recommended for discharge.  He was told he would be sent from Augusta to Fort Gordon, GA, for a medical evaluation.  Time continued to pass for over one year and he was never contacted by his unit for this purpose.  At the time he resided in Rome, GA, and he had the same telephone number he had since before joining the ARNG.  Both his address and telephone number were on file with the military.
   
   d.  Upon his request, The Adjutant General's (TAG) office looked into his case.  It was stated a "certified" letter was sent to an address that he had not lived at since August 2006.  The ARNG did not make any further reasonable effort to contact him by email, phone, or the correct address for this matter.  He has received numerous correspondence from the military (state and federal) as well as the VA to his correct address during this time.
   
   e.  He is simply requesting for his due process of disability and records review, even if it requires him to finally go and get a medical evaluation and be properly discharged.  Through no fault of his own, he was separated without notice or proper evaluation and without reasonable efforts to contact him.

3.  The applicant provides:

* DA Form 3349 (Physical Profile)
* Standard Form 600 (Medical Record – Chronological Record of Medical Care)
* DD Form 2796 (Post-Deployment Health Assessment)
* VA Rating Decision
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* 2010 discharge orders
* three emails and a letter from the GAARNG

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 enlisted in the GAARNG on 10 March 2004.  He completed training and was awarded military occupational specialty 92F (Petroleum Supply Specialist).  He was ordered to active duty in support of Operation Iraqi Freedom and entered active duty on 6 December 2004.  He served in Kuwait/Iraq from 15 May 2005 through 9 May 2006.

3.  He provides copies of the following:

	a.  A Standard Form 600, undated, which shows he received treatment for knee pain.

	b.  A DD Form 2796, dated 17 April 2006, which shows he completed the assessment and stated his "health stayed about the same or got better."  The form also shows that during the interview he noted he had line of duty for chronic knee pain since his deployment.  He had memory problems and headaches and stress concerns.  

4.  He was honorably released from active duty on 11 June 2006 for completion of required active service.  He completed 1 year, 6 months, and 6 days of active service.

5.  On 5 July 2007, he was issued a temporary physical profile of 113111 for chronic knee pain.  The form indicated all records must be assembled prior to final profile.

6.  He also provides a copy of a VA Rating Decision, dated 9 July 2009, which shows he was awarded service-connected disability ratings for:

* post-traumatic stress disorder – 30%, right knee chondromalacia – 10%, left knee chondromalacia – 10%, and tinnitus – 10%
* he was denied service-connection for bilateral hearing loss, traumatic brain injury, and chronic back pain

7.  His record contains the following:

   a.  An incomplete Medical Disqualification Disposition Election memorandum, dated 25 October 2009.

	b.  A Medical Fitness Standards for Retention memorandum, dated 26 October 2009, which advised him that his current medical condition and/or physical defects, under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-14(c), miscellaneous conditions of the extremities, had been determined to disqualify him for military service.  He was given the following options/elections with a reply suspense date of 9 January 2010:

		(1)  Being medically discharged with at least 15 years but less than 20 years of credible service for retirement at age 60.

		(2)  Request a non-duty related PEB which would determine his fitness for further military service.  The memorandum noted that there would be no rating or compensation as a result of this board.  

		(3)  Failure to respond by the suspense date would result in a transfer to the Retired Reserve or discharge, which ever applies.

	c.  A Certified Mail Return Receipt which shows an article of mail was forwarded by the GAARNG to him at an address in Calhoun, GA.  The mail was returned to the GAARNG as undeliverable on 7 December 2009.

8.  There is no evidence to show his election based on the Medical Fitness Standards for Retention memorandum.

9.  He was honorably discharged from the GAARNG on 10 January 2012, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35l(8), medically unfit for retention per Army Regulation 40-501.  He completed 5 years, 10 months, and 1 days of net service and 7 years, 2 months, and 23 days of total service for pay.  

10.  He further provides copies of the following:

	a.  Email correspondence, dated 14 May and 4 June 2012, pertaining to VA documents he mailed to TAG for a review of his ARNG discharge.  

   b.  A letter, dated 22 August 2012, wherein the Director, Human Resources, GAARNG, stated a review of records revealed he was issued a Medical Fitness Standards of Retention memorandum on 26 October 2009.  That memorandum was mailed to his official home of record (Calhoun, GA).  The GAARNG did not receive a response from him requesting a PEB; therefore, he was discharged effective 10 January 2001 in accordance with Army Regulation 40-501, paragraph 3-14(c).

11.  In an advisory opinion, dated 25 February 2013, the Chief, Personnel Policy Division, NGB, reiterated the applicant's request and recommended denial.  The NBG official stated:

	a.  The applicant deployed with the GAARNG in May of 2005 through May of 2006.  He was issued a temporary profile in July of 2007 with a note stating "all records need to be assembled prior to final profile."

	b.  The applicant applied for disability compensation from the VA for injuries received while deployed and was awarded 50% compensation in July 2008.  

	c.  The Medical Fitness Standards for Retention memorandum was sent via certified mail to the applicant.  The memorandum gave him options for discharge or the option of a PEB.  The instructions were detailed with a noted suspense.  This memorandum was mailed to the last address of record on file in his unit as well as the address he provided on his DD Form 214, which also lists a family member at the same address.  

	d.  The applicant suggested that when the certified mail was returned to the sender as undeliverable, a reasonable attempt to contact him via other means was not made; therefore, he was not allowed to seek counsel and make an informed decision regarding his medical status and subsequent discharge.

	e.  While the unit should have made more aggressive attempts to contact the applicant when the certified mail was returned as undeliverable, the applicant also had a responsibility to maintain contact with his unit as well.  He had filed for and received compensation from the VA in spite of not having a PEB prior to his discharge.  He has also received his discharge paperwork and other related documents from the GAARNG.

	f.  The applicant has not provided any documents to show where revoking his discharge for the purpose of undergoing a PEB would cause any change to his current VA rating.   

12.  On 25 February 2013, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. In his response, dated 28 February 2013, the applicant stated:

   a.  The NGB claims that he stated he was discharged without a PEB which could limit his entitlement to benefits; however, he also stated that he may be entitled to a "retired" status from the ARNG which could result in certain rights/privileges or benefits in the future for any number of programs, as well as Combat Related Special Compensation aside from his VA benefits, so their statement disregards a large portion of his inferred concern.
   
   
   b.  He never received any such letter as it was sent to an address he has not lived at since July of 2006.  He had advised his unit of his two address changes; however, this information was obviously not entered into the system or not done so correctly.  His current address has been on file with the VA since 2006.  His old telephone number is that of his parents and has belonged to them since he joined the ARNG in 2004, yet no attempt to contact him or anyone at either unchanged number or email address.  
   
   c.  In fact, he made several failed attempts as well as successful attempts to contact this unit and spoke with several members of his unit about this particular matter on several occasions.  He only received his discharge documents after submitting a letter to the State Inspector General's office.  A Soldier he deployed with happened to handle his case and emailed him a copy of his discharge in November 2010, more than 10 months after he was discharged.  This was his first indication he had been discharged.
   
   d.  This process is and never has been about his VA rating.  This is about proper procedure, due process, and the fact he may be entitled to a "retired" status from the ARNG, which could result in certain rights/privileges or benefits in the future.  A proper discharge and a possible status "retired" has far reaching effects that can carry much further than monetary compensation.

13.  National Guard Regulation 600-200, chapter 6, sets the policies for the separation of enlisted Soldiers from the ARNG.  Paragraph 6-35l(8) provides for separation for being determined 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 per Army Regulation 40-501.  Discharge will not be ordered while the case is pending final disposition. 

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System 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 office, grade, rank, or rating.  The regulation stated that:

   a.  It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

	b.  PEBs are established to evaluate all cases of physical disability equitability for the Soldier and the Army.  It is a fact finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendation to establish the eligibility of a Soldier to be separated or retired because of physical disability.

15.  Army Regulation 40-501, chapter 3, provides that an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank, or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.

16.  The Veterans Affairs Schedule for Rating Disabilities (is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition.  

17.  The VASRD states for slight impairment of the knee, a rating of 10 percent is given.  Ratings increase to 20 percent for moderate and 30 percent for severe.

18.  The VASRD percentage ratings represented, as far as could practicably be determined, the average impairment in civilian occupational earning capacity resulting from certain diseases and injuries.  However, not all the general policy provisions of the VASRD were applicable to the Military Departments.  Many of the policies were written primarily for VA rating boards and were intended to provide guidance under laws and policies applicable only to the VA.  

19.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus 
compensating the individual for loss of a career while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

20.  Title 10, U.S. Code, section 1212(c), states the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA.  Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

21.  Title 10, U.S. Code, section 12731b (Special rule for members with physical disabilities not incurred in line of duty), specifies a member of the Selected Reserve who no longer meets the qualification for membership in the Selected Reserve solely because the member is unfit because of physical disability, for the purpose of section 12731 (Age and Service Requirements) of this title, be treated as having met the service requirements and be provided with the notification required if he has completed at least 15 years and less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was deployed with the GAARNG from May 2005 to May 2006.  He was released from active duty on 11 June 2006.  He was issued a temporary profile for chronic knee pain in July 2007.  At the time it was noted "all records needed to be assembled prior to final profile."  He applied for and was awarded a 50% service-connected disability rating from the VA in July 2008.  In 2009, he was determined to be medically unfit for military service due to miscellaneous conditions of the extremities.  

2.  A Medical Fitness Standards of Retention memorandum, dated 26 October 2009, was sent via certified mail to him at the last address of record on file.  The memorandum contained detailed instructions of his options for discharge or a PEB.  The mail was returned undeliverable in December 2009.  He was discharged from the GAARNG on 10 January 2010 under the provisions of National Guard Regulation 600-200, paragraph 6-35l(8).

3.  With respect to the nonreceipt of the retention memorandum, he states he notified his unit of his address changes, as was his responsibility to do so.  The NGB opined that his address where the memorandum was sent was the same address as listed on his 2006 DD Form 214.  However, there is no evidence of his attempts to correct his addresses in order for the GAARNG to maintain contact with him.

4.  The evidence shows his knee problems were in the line of duty; however, even if a PEB found him unfit, a review of the VASRD shows a predicted 10 percent rating from the PEB, which is the amount of percentage he received from the VA for this condition.  He has not shown with the evidence submitted and the evidence of record that he should have received retirement due to permanent physical disability for knee pain.  Any severance pay he would have received would have been recouped prior to his receiving VA disability compensation.

5.  With respect to being retired medically, the memorandum stated he could elect to be transferred to the Retired Reserve based on having at least 15 years but less than 20 qualifying years of service for retired pay or elect a PEB.  There is no documented evidence that he completed at least 15 good years prior to 10 January 2010.  Therefore, he did not meet the eligibility requirements for completion of a 15-year retirement due to medical unfitness.  He was found medically unfit for chronic knee pain and no other medical conditions.  

6.  The award of a VA rating does not establish entitlement to a medical discharge and/or medical retirement.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  In this case, he was properly evaluated and is being compensated for his service-connected medical conditions by the VA.

7.  There is insufficient evidence that demonstrates his discharge from the GAARNG was incorrect.  Without evidence to the contrary, it appears he was properly discharged accordance with regulatory guidance and he is not entitled to a medical disability retirement and transfer to the Retired Reserve with entitlement to retired pay upon application.  

8.  In view of the foregoing, 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)                                         AR20120022997





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ABCMR Record of Proceedings (cont)                                         AR20120022997



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