BOARD DATE:	9 September 2014

		DOCKET NUMBER:  AR20140001724


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, correction of his records to show he was medically retired instead of separated from the Georgia Army National Guard (GAARNG) for being medically unfit for retention.

2.  The applicant states he should have appeared before a medical board to have his list of medical conditions evaluated.  He was not afforded the right to appear before a medical board prior to his separation from the 878th Engineer Battalion.  He had about 9 years of active service and some inactive service.  In 2008, one of the subordinate units of the 878th Engineer Battalion was getting ready to deploy to Iraq and he was tasked to deploy with them.  After months of training, he did not make it through the medical examination.  He was told he should not go to drill and that his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) would be mailed to him.  He has not cleared the unit or turned in his unit equipment.  He filed a claim with the Department of Veterans Affairs (VA) and is currently rated at 80 percent disabled due to service connected conditions consisting of major depression (50 percent); asthma (30 percent); Skin disorder (30 percent); left knee (10 percent); right knee (10 percent); right wrist (zero percent); and allergies (zero percent).

3.  The applicant provides copies of:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending on 17 October 2002 and 23 July 2005
* NGB Form 22, effective 23 July 2008
* Medical records (136 pages) in no apparent order, dated from 1997 to 2005 
* Physical and Mental Medical Source Statement (10 pages), dated in January 2014
* Psychiatric findings and diagnosis, (2 pages), dated in July 2012
* Email communications, dated in October and November 2006
* Statement of Support, dated 17 November 2011
* VA letter to applicant concerning Gulf War Registry, with code sheets        (7 pages), dated15 December 2011

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 7 March 1997, the applicant enlisted in the Regular Army and was trained as an information systems operator.  He attained the rank of corporal, pay grade E-4.  He was released from active duty (REFRAD) on 17 October 2002 due to completion of required active duty service.

3.  On 27 January 2003, the applicant was ordered to active duty as member of the U.S. Army Reserve in support of Operation Noble Eagle.  He was REFRAD on 23 July 2005.  He had attained the rank of sergeant, pay grade E-5.

4.  On 15 September 2007, the applicant enlisted in the GAARNG as a staff sergeant in pay grade E-6.  

5.  On 10 March 2008, the applicant received a medical examination and was diagnosed with a slightly torn rotator cuff and a left knee meniscus tear.  He was found to meet medical retention standards.

6.  On 23 July 2008, he was separated as a member of the GAARNG and as a Reserve of the Army due to being medically unfit for retention.  The medical records that provided a basis for this action were not available for review.
7.  National Guard Regulation 600-200 prescribes the criteria, policies, processes, procedures and responsibilities to classify, assign, utilize, and transfer within and between states, enlisted Soldiers of the ARNG.  Paragraph 
8-35c states Soldiers may be discharged for being 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.

8.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES 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 or her office, grade, rank, or rating.  Under the laws governing the PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several LOD criteria to be eligible to receive retirement or severance pay benefits.  One of the criteria is that the disability must have incurred or been aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.

9.  Department of Defense (DOD) Directive 1332.18 covers separations or retirement for physical disability.  Paragraph 3.3 states the sole standard to be used in making determinations of unfitness due to physical disability shall be unfitness to perform the duties of the member's office, grade, rank, or rating because of disease or injury.

10.  DOD Instruction 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for service members with service-incurred or service aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty.  Paragraph E2.P2.3 states members of the Ready Reserve with non-duty related impairments and who are otherwise eligible will be referred into the PDES upon the request of the member or when directed under service regulations.  Referral will be solely for a determination of fitness for duty.

11.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.
	a.  Paragraph 3-3 (Disposition) states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by a Medical Evaluation Board (MEB) and will be referred to a Physical Evaluation Board (PEB) as defined in Army Regulation 635-40 with the following caveat:  U.S. Army Reserve or ARNG Soldiers not on active duty whose medical condition was not incurred or aggravated during an active duty period will be processed in accordance with chapter 9 and chapter 10 of this regulation.

	b.  Paragraph 3-4 (General Policy) states possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service.  Physicians are responsible for referring Soldiers with conditions listed below to an MEB.  It is critical that MEB's are complete and reflect all of the Soldier's medical problems and physical limitations.  The PEB will make the determination of fitness or unfitness.  The PEB, under the authority of the U.S. Army Physical Disability Agency, will consider the results of the MEB as well as the requirements of the Soldier's MOS in determining fitness.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was medically retired instead of separated from the GAARNG for being medically unfit for retention.

2.  In the absence of evidence to the contrary, it is presumed that the applicant was properly discharged from the GAARNG and as a Reserve of the Army due to not meeting medical retention standards.

3.  The determination of unfitness for retention in the ARNG would have provided him four options:  an honorable discharge, transfer to the Retired Reserve (if otherwise qualified), consideration by a non-duty related PEB, or if he had an injury that occurred while on active duty, consideration by an MEB with possible referral to a PEB.  Unfortunately, there is no available evidence to determine what option he was provided, or what selection he made.

4.  The available evidence does not show he incurred an injury or an illness while on active duty.  For example, his service record is void of a DA Form 2173 (Statement of Medical Examination and Duty Status) documenting any injuries or illnesses, a line of duty determination that such injuries or illnesses did in fact occur while on duty and the injury was not due to his own misconduct.  Additionally, the available evidence does not contain a determination by his commander that shows a given injury or illness rendered him unable to perform the duties required of his former grade and military specialty, a narrative summary documenting a diagnosed medical condition as failing retention standards, or a separation physical that confirms the existence of a condition that warranted his entry into the physical disability evaluation system.

5.  An award of a rating by another agency does not establish an error by the Army.  Operating under different laws and its own policies the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA for example may award ratings because of a medical condition related to service (service-connected) and which affects the individual's civilian employability.

6.  There is insufficient evidence to grant him 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)                                         AR20130000654



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ABCMR Record of Proceedings (cont)                                         AR20140001724



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