IN THE CASE OF:	  

		BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20130004852 


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 previous request for correction of the date of his separation from the Army National Guard (ARNG) and correction of the reason for his separation to show he was medically retired.

2.  The applicant states he is providing new evidence and a new argument that was not previously considered.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 6 March 1997
* his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 8 November 2001
* a Defense Joint Military Pay System (DJMS) printout, dated 24 April 2012
* his NGB Form 23A1 (ARNG Current Annual Statement), dated 3 December 2003
* five orders, dated between 17 May 1996 and 9 October 2002
* six memoranda, dated between 12 March 2001 and 20 May 2002
* a DA Form 4187 (Personnel Action), dated 24 August 2002
* four Department of Veterans Affairs (VA) letters, dated between 29 October 2002 and 22 December 2011


* one page titled Estimated Federal Employees Retirement System (FERS) Post-1956 Military Service Deposit Between 3 June 1982 and 3 August 1992, dated 25 November 2002
* one page of Army Regulation 40-501 (Standards of Medical Fitness)
* four pages of National Guard Regulation 40-501 (Standards of Medical Fitness - ARNG)
* two pages of National Guard Regulation 600-200 (Enlisted Personnel Management)
* his previous application to the Army Board for Correction of Military Records (ABCMR) with ABCMR Record of Proceedings in Docket Number AR20110009964, dated 10 January 2012
* 256 pages of various medical records/documents dated between 7 June 1982 and 18 August 2011

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 ABCMR in Docket Number AR20110009964, on 10 January 2012.

2.  As a new argument the applicant stated that on 3 December 2001 he was notified he had completed the required years of service to be eligible for retired pay at age 60.  His records do not include documentation of his attendance at weekend drills subsequent to the [8 November 2001] date of his discharge from the ARNG because he was drilling for points and without pay; he waived his pay.

3.  As new evidence the applicant provides:

	a.  A letter issued by the VA Regional Office, Montgomery, AL, dated 29 October 2002, wherein it stated they adjusted his disability compensation award to show he waived compensation to receive drill pay for 41 days.  The dates of the drills that he waived compensation for were not noted.

	b.  A letter issued by the VA Regional Office, Montgomery, AL, dated 28 January 2005, wherein it stated they had received the form, signed by himself and an official from his unit, that certified he received drill pay for 41 drill days during fiscal year 2001 (1 October 2000 to 30 September 2001).

4.  The applicant states the 12 July 2001 recommendation showing he was fit for military duty and the 12 July 2001 findings showing he could be retained with his unit as a non-deployable asset was required because he was a diabetic.  He was 


bitten by a brown recluse spider during annual training and a line of duty was written up.  If this was intended for his discharge, it was not approved until 25 January 2002 and the medical evaluation board (MEB) recommendation was not approved until 20 May 2002.  National Guard Regulation 40-3 (Medical Care for ARNG Members) stated discharges will not be ordered while the case is pending disposition.

5.  The applicant served in the Regular Army (RA) from 3 June 1982 to 3 August 1992.  On 4 August 1992, he enlisted in the Alabama ARNG (ALARNG).

6.  He was ordered to active duty as a member of his ARNG unit in support of Operation Joint Endeavor and he entered active duty on 17 June 1996.  He was honorably released from active duty on 6 March 1997 to the control of the ARNG.

7.  The applicant provided medical records showing he was treated for a variety of conditions during his RA service.  These records do not show any of the conditions were found to be unfitting for the purpose of retention on active duty.  These records also include a Medical Duty Review Board (MDRB) recommendation, dated 12 July 2001, showing he was found fit for military duty and MDRB findings and recommendations, also dated 12 July 2001, showing he could be retained with his unit as a non-deployable asset.

8.  On 3 December 2001, he was notified he had completed the required years of service to be eligible for retired pay at age 60.

9.  A memorandum issued by the Office of the Adjutant General, Montgomery, AL, dated 20 May 2002, informed him an MDRB had reviewed his medical records after referral from his annual medical screening or physical examination and recommended him for separation from the ARNG as medically unfit for retention under the provisions of Army Regulation 40-501.

10.  Orders 283-044, issued by the Office of the Adjutant General, Montgomery, AL, dated 9 October 2002, honorably discharged him from the ALARNG and assigned him to the Retired Reserve effective 8 November 2001.

11.  His NGB Form 22 shows he was honorably discharged effective 8 November 2001 and transferred to the Retired Reserve.  He completed a total of 20 years of service for pay.

12.  The applicant also provides numerous medical records that show he was treated by the VA for various medical conditions and a VA letter issued by the VA 


Regional Office, Columbia, SC, dated 22 December 2011, wherein it shows he was rated at 100 percent for a service-connected disability.

13.  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 Physical Disability Evaluation system, 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 training.

14.  Army Regulation 40-501, chapter 10, sets basic policies, standards, and procedures for medical examinations and physical standards for the ARNG.  For the ARNG, chapter 3 is interpreted as the standard for retention.  Soldiers not meeting the standards of chapter 3 are considered to not meet retention standards and will require review by the State Surgeon and referral to the MDRB, in accordance with this regulation, in order to be retained in the Army National Guard of the United States (ARNGUS).

15.  National Guard Regulation 600-200 governs procedures for enlisted personnel of the ARNG.

	a.  Paragraph 8-26j of the version in effect at the time stated to refer to Army Regulation 135-178 (Enlisted Administrative Separations), chapter 12, for discharge of Soldiers medically unfit for retention under the provisions of Army Regulation 40-501, chapter 3.

	b.  Paragraph 8-27 of the version in effect at the time provided the reasons for discharge from the State ARNG.  Soldiers separated under paragraph 8-27u would be discharged and transferred to the Retired Reserve if they were not yet age 60.

16.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNGUS and the USAR.  It applies to all enlisted Soldiers of the ARNGUS and the USAR who are not performing fulltime active duty in the U.S. Army.  The policy for the discharge of Soldiers medically unfit for retention, in effect at the time, stated, in part, discharge would be accomplished when it had been determined that a Soldier was no longer qualified for retention by reason of medical unfitness under the provisions of Army Regulation 40-501, unless the Soldier was eligible for transfer to the Retired Reserve.
17.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant's processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the type of discharge the applicant received, he has not provided any new evidence that shows he incurred any unfitting medical conditions while he was entitled to basic pay that would have required processing through the PDES.  He was found medically unfit for retention by an MDRB and he had completed 20 years of qualifying service for a Reserve retirement.  As a result, he was properly discharged from the ARNG on 8 November 2001 and transferred to the Retired Reserve per the governing regulations.

2.  With respect to the date of his discharge from the ARNG, it appears the orders discharging him from the ARNG, dated 9 October 2002, may have been delayed to allow him to complete the MDRB process.  However, he has not provided any new evidence that conclusively shows he served in the ARNG after 8 November 2001.

3.  A disability decision rendered by another agency does not establish an error on the part of the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining a Soldier's fitness to perform military duties.  The VA may award ratings because of a service-connected disability that was incurred in or aggravated by active military service that affects the individual's civilian employability.

4.  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 to amend the decision of the ABCMR set forth in Docket Number AR20110009964, dated 10 January 2012.



      ____________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)                                         AR20130004852



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ABCMR Record of Proceedings (cont)                                         AR20130004852



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