BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20130012691 


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 correction of his records to show he was medically discharged.  (Note:  He was discharged from the Michigan Army National Guard (MIARNG) because he did not meet medical retention standards.  It appears he is actually requesting a discharge with disability severance pay or a disability retirement.)

2.  He states his medical records show he was unable to run, work, or stand for any length of time; was unable to sit in a truck for a long time; and he needed a medical discharge.

3.  He provides excerpts from his civilian and Department of Veterans Affairs (VA) 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.  On 11 March 1978, the applicant enlisted in the MIARNG.  After completing initial entry training, he was awarded military occupational specialty (MOS) 19D (Cavalry Scout) and he served in this MOS until he was discharged.

3.  His service medical records are not available for review.

4.  The complete facts and circumstances of his discharge are not available for review.  However, his records include discharge orders and a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

	a.  MIARNG Orders 192-005, dated 24 September 1992, honorably discharged him effective 9 October 1992 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26y.

	b.  His NGB Form 22 shows he was separated under the provisions of National Guard Regulation 600-200, paragraph 8-26y, after completing 14 years, 6 months, and 29 days of total service for pay.

5.  He provided a record of an examination by a civilian doctor in an orthopedic surgery practice, dated 23 September 1992, showing the reason for the examination was to check his knee.  The examining physician noted the applicant could not run, walk, or stand for any length of time and could not sit in a truck for a long time.  The examining physician noted the applicant needed a medical discharge.

6.  He provided excerpts from his VA medical records showing he was seen several times for left knee pain and hip pain from 1999 to 2004.  He was evaluated for recurrent left knee pain that apparently was a result of repetitive strain while serving in the military.  It noted he had left knee arthroscopy (surgical repair of joint) in the private sector and was advised to undergo left knee arthroplasty in the future to relieve his symptoms.  Magnetic resonance imaging showed severe arthritis, tears of the lateral meniscus, and degenerated or absent medial meniscus.

7.  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 incurred while entitled to basic pay.  Under the laws governing the Physical Disability Evaluation System (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.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or must have been the proximate cause of performing active duty or inactive duty training.

8.  Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations) sets policies and procedures for administrative separation of ARNG of the United States and U.S. Army Reserve enlisted Soldiers.  Chapter 12, in effect at the time, stated separation would be accomplished when it had been determined that a Soldier was no longer qualified for retention by reason of medical unfitness.

9.  Paragraph 8-26y of National Guard Regulation 600-200, in effect at the time, provided for the discharge of Soldiers who were medically unfit for retention under the standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for correction of his records to change the type of discharge he received.

2.  The available records are void of documentation showing he incurred or aggravated an unfitting medical condition while he was entitled to basic pay or that was caused by performing active duty or inactive duty training.  It appears there was no basis for referring him to the PDES and he was administratively discharged because he did not meet medical retention standards.  In the absence of evidence showing otherwise, it must be presumed that his discharge processing complied with applicable laws and regulations and that his rights were protected throughout the separation process.

3.  In view of the foregoing, there is no basis for granting 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 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)                                         AR20130012691



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ABCMR Record of Proceedings (cont)                                         AR20130012691



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