IN THE CASE OF:  	  

		BOARD DATE:  20 November 2014	  

		DOCKET NUMBER:  AR20140000115 


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 the reason for his uncharacterized discharge from the California Army National Guard (CAARNG) be changed to separation for physical disability (with severance pay) with an effective date of 12 May 2007.

2.  The applicant states his record reflects he was disenrolled from the Reserve Officers' Training Corps (ROTC)/Simultaneous Membership Program (SMP) on 13 May 2005.  The basis for his disenrollment was a medical condition he incurred while attending basic combat training upon his enlistment in the 
U.S. Army Reserve (USAR) prior to enrolling in ROTC.

	a.  After he was disenrolled from ROTC he returned to his National Guard troop program unit (TPU) until he was discharged from the National Guard and the Reserve of the Army on 3 October 2005.  According to paragraph 9-14(o) of Army Regulation 601-210 (Active and Reserve Components Enlistment Program), a Soldier who is dropped from the ROTC/SMP is retained as an assigned member of the TPU and serves in an enlisted rank until the expiration of their current contractual or statutory service obligation, provided the Soldier is not otherwise processed for discharge under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations).

	b.  Paragraph 5-6, Army Regulation 135-178, provides for discharge of a member disenrolled from ROTC/SMP.  However, this discharge was to occur concurrent with disenrollment from the ROTC/SMP per paragraph 9-14(q) of Army Regulation 601-210.  He was not concurrently discharged, but returned to his TPU, and he continued to participate until October 2005.  He reasonably believed he would be continuing on with his military duties.

	c.  He remained an assigned member of his TPU for 5 months after his disenrollment.  This was the appropriate time for his unit to make an assessment of his medical condition and determine whether he was fit to continue service in the CAARNG.  His unit had full knowledge of his disenrollment from ROTC/SMP due to his medical condition.  He emphatically expressed his desire to continue to serve in the Army.  He believed his medical condition was not going to be an issue in the CAARNG.  

	d.  He feels if his commander believed he was unable to perform his duties because of physical disability he should have been referred for medical evaluation under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

	e.  Although he was discharge in the grade of E-3, the highest rank/pay grade he held was SMP cadet/E-5.

	f.  He feels that if he had been retained through the physical evaluation process he would have been able to continue his military service obligation through 12 May 2007, the day prior to his appointment as a commissioned officer in the U.S. Public Health Service (USPHS) on 13 May 2007.  As a matter of fairness he requests that any doubt be resolved in his favor and allow for the date of his current discharge of 3 October 2005 to be amended to 12 May 2007.  

3.  The applicant provides:

* narrative appeal
* military documentation
* medical documentation
* Department of Veterans Affairs (VA) correspondence

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 30 September 2002, the applicant enlisted in the USAR for 8 years.  He completed a period of active duty from 7 May 2003 to  17 July 2003. 

3.  His service/civilian medical records provide a history of pain in his hands and fingers.

	a.  A Standard Form (SF) 600 (Chronological Record of Medical Care) contains an entry dated 26 May 2003 stating he complained of a history of "trigger fingers," had cortisone injections, and was now complaining of tremors in both hands.  He complained of pain in finger joints for 20 days made worse by physical training.

	b.  An SF 600, dated 28 May 2003, documents a follow-up from weekend sick call.  He had non-traumatic bilateral hand pain and stated every joint of every finger and both wrists hurt and were accompanied by swelling.  Assessment was possible arthritis.

	c.  Radiologic Examination Report of 28 May 2003 showed diffuse soft tissue swelling in the 2nd, 3rd, 4th and 5th digits with eccentric swelling at the joint line bilaterally.  Normal mineralization noted.  No evidence of erosions or joint space narrowing seen.

	d.  An SF 600, dated June 2003, shows he complained of joint pain in his hands.  He was a basic trainee with a history of 1 year of intermittent hand pain (joints).  Occurred daily prior to starting piroxicam (anti-inflammatory medication) - on medication for 19 days.  Very rare episodes of pain, pain worse when waking up.  Continued piroxicam and referred for rheumatology consult.

	e.  A request for rheumatology consult stated he had 1 year of bilateral hand pain, worse in the morning.  Pain described as painful joints.  Worse with activity and with awakening in the morning.  Piroxicam resulted in significant symptom improvement.  X-rays showed soft tissue swelling around 2-5 digits but no bony abnormalities.  Labs within normal limits.  Evaluate for rheumatologic condition like rheumatoid arthritis (RA) that would affect future military career.

	f.  A Rheumatology Consultation, dated 25 September 2003, was provided by Dr. JJB, MD, Internal Medicine-Westchester Medical Group, White Plains, NY stated the applicant was in Fort Benning, GA for basic training where he had to do a training exercise called a "bear crawl," on his hands and knees every day.  Within the first few days, he developed pain and swelling across both hands involving the proximal interphalangeal (PIP) joints (between the first and second phalanges).  The Base physician tested for arthritis with negative results.  He had recurrent pain and swelling in June 2003 and x-rays of both hands were done.  He had finger tendon injections by an orthopedist before enlisting in the Army and one injection in the military.  In 2001, he was positive for Lyme disease.  The examiner's impression was possible early stage of RA.

	g.  On a DD Form 2492 (Department of Defense Medical Examination Review Board (DODMERB) Report of Medical History) the applicant stated he was being treated for a minor inflammatory condition by a rheumatologist, Dr. JJB, in White Plains, NY.  He received x-rays of both of his hands.  He could still perform all of his military duties to include physical training.

4.  He was ordered to active duty for special work during the following periods:

* 17 November 2003 for 6 duty days
* 24 November 2003 for 6 duty days
* 12 January 2004 for 12 duty days

5.  On 23 August 2004, he was honorably discharged from the USAR.  On 
the same date, he enlisted in the CAARNG in pay grade E-5 for 6 years and 
5 weeks in pay grade E-5 under the SMP.

6.  A memorandum, dated 13 May 2005, from Headquarters, U.S. Army Cadet Command, Fort Monroe, VA for the Professor of Military Science, U.S. Army ROTC Instructor Group, University of Southern California, Los Angeles, CA directed disenrollment of the applicant under the provisions of Army Regulation 145-1 (Senior ROTC Program, Organization, Administration, and Training), paragraph 3-43a(5), due to chronic pain in his hands and wrists, a medical condition which precluded appointment as a commissioned officer.

7.  Orders 143-01, dated 23 May 2005, discharged him from the USAR Control Group (ROTC) effective 13 May 2005.  Authority is shown as Army Regulation 145-1, paragraph 3-43a(5).  Special instructions stated he was medically disqualified for retention without further obligation.

8.  He was issued a National Guard Bureau (NGB) Form 22E (Report of Separation and Record of Service) that provides the following information in:

* item 5b (Pay Grade) - E3
* item 8b (Effective Date) - 13 May 2005
* item 10a (Net Service this Period) - 8 months and 21 days
* item 23 (Authority and Reason) - Section 260 California N/VC and Paragraph 8-26b(1) National Guard Regulation 600-200: Enrollment/Disenrollment in ROTC

9.  Joint Forces Headquarters (JFH) CAARNG Orders 3-1045, dated 3 January 2006, reduced him from sergeant to private first class and withdrew military occupational specialty 09R.

10.  JFH CAARNG Orders 12-1029, dated 12 January 2006, discharged him from the ARNG and as a Reserve of the Army effective 13 May 2005.  Type of discharge is shown as uncharacterized.

11.  On 27 June 2006, an NGB Form 22A (Correction to NGB Form 22) was issued correcting item 8b of his NGB Form 22, with an effective date of 13 May 2005, to show his effective date of discharge as 3 October 2005.  This form also corrected his net service, prior Reserve component service, total service for pay, and added two awards.

12.  On 27 July 2009, an NGB Form 22A was issued correcting his prior active service and his total service for pay on his NGB Form 22.

13.  An ARNG Retirement Points History Statement, prepared on 8 August 2009, shows he earned 11 inactive duty for training points during the period 14 May 2005 to 3 October 2005.

14.  On 11 January 2010, an NGB Form 22A was issued correcting his date of rank, his record of service, and adding four awards to his NGB Form 22.

15.  On 8 April 2010, the applicant submitted a request to the CAARNG for a change in the characterization of his discharge from the CAARNG.  He also believed he was denied the option to have his medical condition reviewed by a medical review board.

16.  On 21 April 2010, the CAARNG found no substantiating documentation to support his request.  

	a.  The CAARNG stated that Army Regulation 145-1, paragraph 3-43a(5) reflects a medical condition that precludes appointment, which is cause for disenrollment from ROTC.

	b.  The CAARNG did not acknowledge his NGB Form 22A, dated 27 June 2006, which corrected his discharge date to 3 October 2005.  The CAARNG did not explain the reason for the delay in processing the applicant for discharge after his disenrollment from ROTC. 

17.  On 15 July 2010, the CAARNG denied his second request for a change of characterization of his discharge.  The CAARNG cited the same regulations that were cited in their denial dated 21 April 2010.  However, the CAARNG did not acknowledge the corrected discharge date shown on the NGB Form 22A, dated 27 June 2006, showing he was not disenrolled from ROTC they did not explain the reason for the delay in processing the applicant for discharge after his disenrollment from ROTC.

18.  On 5 January 2012, an NGB Form 22A was issued adding the following comment in item 18 (Remarks) of his NGB Form 22, "IAW AR 145-1 paragraph 3-43a(5) Soldier was disenrolled from ROTC and discharged from the CAARNG due to medical disqualification for appointment as a commissioned officer IAW AR 40-501, chapter 2."

19.  A letter, dated 25 May 2012, from the New York Harbor Healthcare System, VA stated the applicant was a service-connected veteran rated as 100 percent (%) disabled from the VA with the following disabilities:

* hiatal hernia - 60%
* loss of motion of all fingers - 60%
* loss of motion of all fingers - 50%
* kidney stones - 30%
* superficial scars - 30%
* arthritis, degenerative - 10%
* arthritis, degenerative - 10%
* arthritis, degenerative - 10%
* major depressive disorder - 10%

20.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 1 April 2011, the ADRB reviewed and denied his request for upgrade.  The ADRB determined his discharge was proper and equitable.

21.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides for the personnel management of ARNG officers.  Chapter 13 covers the SMP and states that the SMP is a dual-status program that requires Reserve Component enlisted status and ROTC participation.  Army ROTC cadets are required to serve as SMP cadets when participating as non-scholarship ARNG member/U.S. Army Reserve Senior ROTC cadets.  
	a.  Enlisted personnel who take part in the SMP and who are enrolled in the ROTC advanced course serve and are paid in pay grade E-5 or a higher enlisted grade held, are coded as holding military occupational specialty 09R, and are trained as officers train.  In the absence of training, they are used in an appropriate supervisory capacity as determined by the commander of the unit to which assigned or attached.  They are also subject to the same standards for satisfactory performance applicable to other personnel assigned to the unit.

	b.  An ARNG enlisted member who wishes to participate as an SMP non-scholarship cadet agrees that his or her advancement to pay grade E-5, when awarded as a result of becoming an SMP member, is effective as long as he or she continues to be an SMP participant.  Should a cadet cease to be an SMP participant or be disenrolled for any reason from the ROTC Advanced Course, the cadet would revert back to the grade held immediately prior to advancement to pay grade E-5 as an SMP participant unless the provisions of Army Regulation 145-1 dictate a higher grade.

22.  National Guard Regulation 600-200 (Enlisted Personnel Management), then in effect, stated the following were reasons, applicability, codes and board requirements for administrative separation or discharge from the Reserve of the Army, the State ARNG only, or both.

	a.  Paragraph 8-26b(1).  Refer to AR 135-178, chapter 4 (5), for separation from the ROTC cadet early release when authorized by Headquarters, Department of the Army.

	b.  Paragraph 8-26j(1).  Refer to Army Regulation 135-178 (Enlisted Administrative Separations), chapter 12 (15) for discharge for Soldiers medically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness).  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.  If the Soldier refuses to report as directed, see paragraph 6-36u below.  Commanders who do not recommend retention will request the Soldier’s discharge.  When the medical condition was incurred in line of duty, the procedures of Army Regulation 600-8-4 (Line of Duty Policy, Procedures, and Investigations) 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. 

23.  Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Chapter 2 lists an authenticated history of chronic arthritis as a cause for rejection for appointment, enlistment, and induction.
24.  Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNG of the United States and the USAR.  

	a.  Paragraph 2-11 states service will be described as uncharacterized if separation processing is initiated while a Soldier is in an entry level status (see glossary).

	b.  Paragraph 5-6b states the separation authority may order that a cadet be discharged from the USAR citing this paragraph as the authority or retained in the Individual Ready Reserve under the Mobilization Asset Transfer Program (MATP).

	c.  Paragraph 5-6c states the service of cadets discharged or retained under the provisions of this paragraph will be described as uncharacterized.

	d.  Paragraph 5-6d provides for the disposition of a cadet who is disenrolled from the ROTC Program is prescribed by Army Regulation 145–1.  

	e.  Paragraph 5-8 (Discharge of a potential Reserve Officers’ Training Corps/Simultaneous Membership Program participant).

		(1)  Criteria. A Soldier who enlisted as a potential participant in the ROTC/SMP in accordance with Army Regulation 601-210, chapter 10, with duty status coded 09R10, and who applies but is not accepted for enrollment in the ROTC advanced course will be discharged on his or her request.

		(2)  Characterization of service.  The service of Soldiers discharged under the provisions of this paragraph will be uncharacterized unless an honorable characterization is warranted in accordance with paragraph 2–11a, of this regulation.

	f.  Chapter 15, Separation for Other Reasons.  Paragraph 15-1k (Medically unfit for retention)

		(1)  Discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention by reason of his medical unfitness (Army Regulation 40-501, Army Regulation 40–3) unless the Soldier requests and is:

			 (a)  Granted a waiver under Army Regulation 40-501, as applicable.

		 	 (b)  Determined fit for duty under a non-duty related PEB fitness determination (Army Regulation 635-40).

			 (c)  Eligible for transfer to the Retired Reserve (Army Regulation 140-10).

		(2)  Soldiers who do not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training will be processed as specified in Army Regulation 635-40 if otherwise qualified.

	g.  The service of a Soldier separated under this section will be characterized as honorable unless an uncharacterized description of service is required by paragraph 2-11, of this regulation, or a characterization of general (under honorable conditions) is warranted under chapter 2, section III, of this regulation.

	h.  A member of a reserve component who is not on active duty or who is serving under a call or order to active duty for 180 days or less begins entry level status upon enlistment in a reserve component.  Entry level status for such a
member of a reserve component terminates as follows:

* 180 days after beginning training if the Soldier is ordered to active duty 	for training (ADT) for one continuous period of 180 days or more
* 90 days after the beginning of the second period of ADT if the Soldier 	is ordered to ADT under a program that splits the training into two or 	more separate periods of active duty

	i.  For the purposes of characterization of service, the Soldier’s status is determined by the date of notification as to the initiation of separation proceedings.

25.  Army Regulation 145-1 prescribes policies and general procedures for administering the Army's Senior Reserve Officers' Training Corps (SROTC) Program.  Paragraph 3-43a(5) indicates that one of the reasons for disenrollment of nonscholarship and scholarship cadets is medical disqualification when determined and approved by Headquarters, ROTC Cadet Command (HQ, ROTCCC), or higher authority.  A medical condition that precludes appointment will be cause for disenrollment.

26.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes the appointment, reassignment, management, and mobilization of ROTC cadets under the SMP.

	a.  Paragraph 9-14o states a Soldier disenrolled from the ROTC Basic/Advanced Course (MS III/MS IV) is dropped from ROTC/SMP participation, retained as an assigned member of the TPU, and serves in an enlisted rank (Army Regulation 600-8-19) until the expiration of the term of their current contractual or statutory service obligation.  This is provided the Soldier is not otherwise processed for discharge per Army Regulation 135-178.

	b.  Paragraph 9-14q states the voluntary or involuntary release of a cadet from the ROTC/SMP will require reassignment to Control Group (ROTC) administered by an ROTC Region commander, or discharge concurrent with disenrollment.

27.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that govern the evaluation for 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 the following LOD criteria to be eligible to receive retirement and severance pay benefits:

	a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate result of performing active duty or inactive duty training.

	b.  The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

	c.  Chapter 8 contains the rules and policies for disability processing of Reserve Component (RC) Soldiers.  It states that a RC Soldier will be referred for medical processing through the PDES when a commander or other proper authority believes that Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability.  It also specifies that this fitness determination is different from a LOD determination, which establishes only whether the Soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved.  Proximate result establishes a causal relationship between the disability and the required military duty.

	d.  Paragraph 8-2 states Soldiers of the RC eligible for processing under the PDES include those who incur or aggravate an injury or disease in the line of duty while performing inactive or active duty training during annual training (AT), active duty special work (ADSW), ADT with or without pay, or temporary tour of active duty (TTAD) under a call or order that specifies a period of 30 days or less, to include full-time training duty (FTTD) under Title 32 U.S. Code, sections 502f, 503, 504, and 505.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had not completed 180 days of continuous active military service and he was not ordered to ADT under a program that splits the training into two or more separate periods of active duty.  Therefore, the characterization of his period of service on his NGB Form 22 is correct.

2.  Once he was disenrolled and ceased to be an SMP participant he reverted back to the grade he held immediately prior to advancement to pay grade E-5 as an SMP participant.  Therefore, there is neither an error nor an injustice in his pay grade on his NGB Form 22.

3.  He contends if he had been retained through the physical evaluation process he would have been able to continue his military service through 12 May 2007, the day prior to his appointment as a commissioned officer in the USPHS on 
13 May 2007.  However, without a finding of fitness/unfitness for duty through the PDES there is insufficient information to make this determination.

4.  His original NGB Form 22 indicated he was discharged on 13 May 2005 and the reason and authority reflect a discharge concurrent with a ROTC/SMP disenrollment.  The CAARNG later acknowledged that he had continued to drill for approximately 5 months after disenrollment and issued an NGB Form 22A correcting his date of discharge to 3 October 2005, thereby giving him credit for the entire period he served.  The reason for the delay in processing his discharge after disenrollment is not known, but it appears that, once his record was corrected, the delay did him no harm.

5.  The medical records provided by the applicant clearly show medical treatment for pain in his hands and wrists from May 2003 through June 2003 while on active duty.  The records also indicate he had a 1-year history of a joint pain in his hands and wrists prior to entering the service, indicating his medical condition existed prior to service and was not incurred while entitled to basic pay.  The letter of disenrollment from ROTC/SMP, dated 13 May 2005, indicates he was disenrolled due to chronic pain in his hands and wrists, a medical condition that precluded appointment as a commissioned officer.

6.  There is no evidence the applicant had a disability causing him to be unfit to perform his military duties as an enlisted member of the CAARNG that was incurred or aggravated while he was entitled to basic pay or as the proximate result of performing active duty or inactive duty training.  Therefore, there is no basis on which to change his discharge to a discharge for physical disability with severance pay.

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)                                         AR20130002744



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ABCMR Record of Proceedings (cont)                                         AR20140000115



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