IN THE CASE OF:	   

		BOARD DATE:	  23 September 2014

		DOCKET NUMBER:  AR20140003863 


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 consideration for medical retirement (placement on the permanent disability retired list) vice separation with "severance pay" (i.e., separation pay and transfer to the Retired Reserve). 

2.  The applicant states he was in the process of a medical evaluation board (MEB) for post-traumatic stress disorder (PTSD) with aspects of alcohol abuse.  He missed his final MEB appointment and his physical evaluation board (PEB) was terminated.  He was then separated from the Wisconsin Army National Guard (WIARNG) for non-retention under the Qualitative Retention Board (QRB). He elected to transfer to the Retired Reserve.  Subsequent to his transfer to the Retired Reserve, the Department of Veterans Affairs (VA) awarded him service-connected disability compensation for multiple conditions, including PTSD.  He believes if his PEB had continued, he would have been permanently retired by reason of disability. 

3.  The applicant provides:

* Two previous applications to the Board
* Two previous response letters from the Army Review Boards Agency
* Congressional correspondence
* Email from his battalion commander
* Statement from another Soldier
* VA rating decision, dated 21 September 2011
* DD Form 214 (Certificate of Release or Discharge) for the period ending 11 April 2007
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Orders 163-2001, dated 12 June 2001 (release from Active Guard Reserve (AGR))
* Orders 165-1003 (transfer to Retired Reserve)
* NGB Form 23B (ARNG Current Annual Statement)
* VA medical records/progress notes
* Memorandum of selection for non-retention by the QRB

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in June 1963.  He will turn 60 years of age in June 2023. 

2.  He enlisted in the Regular Army on 6 October 1983 and he held military occupational specialty (MOS) 76Y (now 92Y) (Unit Supply Specialist).  He served through a reenlistment and he attained the rank/grade of sergeant (SGT)/E-5. 

3.  He was honorably discharged on 5 September 1991 at the expiration of his term of service.  He was issued a DD Form 214 that captured his active service. 

4.  He enlisted in the WIARNG on 6 September 1991.  He served through multiple extensions in a variety of assignments.  

5.  On 24 September 2004, WIARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter) and on 1 October 2004, he was promoted to staff sergeant (SSG)/E-6 in the ARNG. 

6.  On 9 September 2006, he was ordered to active duty in an AGR status under Title 32, U.S. Code, section 502.  He was assigned to the 2nd Battalion, 127th Infantry Regiment, and then to Company E, 132nd Brigade Support Battalion.

7.  On 28 October 2008, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being found drunk on duty.  His punishment consisted of a reduction to SGT/E-5. 

8.  On 5 February 2009, the WIARNG published Orders 036-1096 ordering his attachment to the 132nd Brigade Support Battalion (Rear). 

9.  On 15 July 2009, by memorandum, he was notified that he was considered and selected for retention by the 2009 QRB.
10.  On 20 March 2010, by memorandum, he was notified that he was considered by the 2010 QRB, but he was not selected for retention.  He was also advised:

	a.  Since he elected to transfer to the Retired Reserve when the QRB convened, he would be transferred to the Retired Reserve by 12 June 2010.  However, he was identified as currently being in a medical retention process.  Therefore, his separation date was contingent upon an appropriate determination by medical authorities.  

	b.  If he was found fit for retention, he would be separated under the QRB.  If he was found unfit for retention, he would be medically retired.  

11.  On 12 June 2010, WIARNG published Orders 163-2001 releasing him from active duty in an AGR status effective 12 June 2010 and returning him to his Reserve unit.  The orders state: 

* Separation is based on paragraph 6-5 of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management)
* Separation pay:  Soldier is entitled to full separation pay 

12.  He was honorably released from active duty on 12 June 2010 by reason of having completed his required service.  His DD Form 214 for this period of service shows he completed 3 years, 9 months, and 4 days of active service.  This DD Form 214 shows he was awarded the Global War on Terrorism Expeditionary Medal, but his area of deployment is unknown. 

13.  On 14 June 2010, the WIARNG published Orders 165-1003 honorably discharging him from the ARNG and transferring him to the Retired Reserve in accordance with paragraph 6-36r of NGR 600-200 effective 12 June 2010.  His NGB Form 22 and NGB For 23B show he completed 26 qualifying years of service for non-regular retirement. 

14.  He provides: 

	a.  A Change of Rater Noncommissioned Officer Evaluation Report (NCOER) for the rating period 12 September 2007 through 14 July 2008.  This NCOER was a derogatory NCOER, wherein his rater rated his "Integrity" value as a "No," his NCO Responsibilities as "Needs Improvement" in 3 out of 5 areas, and his performance as "Marginal."  However, he met the height/weight standards and he passed the Army Physical Fitness Test (APFT).  His senior rater rated his performance/potential as "Fair."  No physical profile or medical restrictions are listed.
	b.  Memorandum, dated 16 July 2008, issued by the TRICARE Management Activity, Military Medical Support, to the applicant's higher headquarters, indicating the applicant had been identified with a potential alcohol abuse condition that may require evaluation at the nearest military treatment facility.  His diagnosis was "303.90, other and unspecified alcohol dependence, unspecified drinking behavior."  Attached to this memorandum is a "Fitness for Duty Process Information Sheet" explaining this process. 

	c.  Mental Health Discharge Summary that shows he was admitted to what appears to be a VA facility on 15 August 2008 and he was discharged from that facility on 19 August 2008.  His diagnosis was: 

* Axis I:  Alcohol dependence, PTSD, Depressive Disorder (Not Otherwise Specified)
* Axis II:  None identified
* Axis III:  Hypertension, impaired fasting glucose, hyperlipidemia, gout in remission, Barrett's esophagitis with history of dilatation, and history of pancreatitis
* Axis IV:  Stressors are moderate to alcohol abuse and PTSD
* Axis V:  Global Assessment of Functioning (GAF), 35 on admission, 
50 on discharge; highest known GAF in 12 months was 50

	d.  Memorandum, dated 27 January 2009, issued by a military doctor at Ireland Army Community Hospital, Fort Knox, KY, indicating the applicant does not meet retention standards per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, paragraph 41e.  

	e.  An email, dated 9 June 2010, from Lieutenant Colonel (LTC) LM, the applicant's battalion commander and Director of Health Services at the WIARNG Joint Force Headquarters.  LTC LM states in the email that the applicant's predicament was the result of missing his final appointment three different times. He wanted her (the author) to request another board for him because of his own doing, and as a steward of the government, she did not believe it was appropriate to restart a board for him that quite likely would take another 
12 months to complete.  She adds that she started a board for him once and expected and trusted him to complete it.  He failed to do so.  He was afforded the opportunity to attend inpatient therapy twice.  He was also afforded the opportunity to take convalescent leave to attend further counseling and therapy, yet he would still drink and he proved himself unreliable in behavior (showing up late, making threatening and belligerent phone calls to the armory).  She concluded that she would ensure he was afforded the opportunity to seamlessly transition to the VA. 

	f.  VA rating decision, dated 21 September 2011, that shows the VA awarded him service-connected disability compensation for the following conditions, effective 13 June 2010. 

* PTSD with associated alcohol abuse, now in early remission, claimed as PTSD, Depressive Disorder rated at 100 percent
* Obstructive Sleep Apnea rated at 50 percent
* Esophageal Stricture rated at 20 percent
* Type II Diabetes Mellitus rated at 20 percent
* Seronegative Rheumatoid Arthritis (hands, knees, feet, and gout) rated at 20 percent 

	g.  Statement, dated 20 December 2012, from a retired sergeant first class (SFC), who is now a Veterans Service Officer, indicates he has known the applicant since 2004; they deployed and served in Iraq together.  Upon their return from Iraq he supervised the applicant.  This individual summarizes his observations of the applicant's performance prior to deployment and his struggle with PTSD and the alcohol addiction that followed.  This individual asserts that the applicant's substance abuse should have warranted closer supervision by his chain of command.  This individual also believes if this had happened, the applicant's PEB would have continued and he would have been retired for disability. 

	h.  Various VA medical documents and progress notes.  

15.  NGR 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.  

	a.  Paragraph 6-36 lists reasons for separation from the State ARNG not listed in paragraph 6-35.  All involuntary administrative separations require commanders to notify Soldiers concerning intent to initiate separation procedures per paragraph 6-32.  All Soldiers being involuntarily separated will be afforded a reasonable opportunity to provide a written response for consideration by the separation authority.  

	b.  Paragraph 6-36r provides for the separation of ARNG Soldiers not selected for retention by a qualitative retention board and the Soldier elects to be reassigned to the USAR Control Group (Reinforcement) or the Retired Reserve. 

16.  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 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 or severance pay benefits.  
	a.  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.

	b.  Appendix B-4(c) (Failure to comply with prescribed treatment) states there are many conditions, such as neuropsychiatric disorders, or certain injuries, which may be improved sufficiently by treatment to prevent disability, or to significantly decrease it.  If a Soldier unreasonably fails or refuses to submit to medical or surgical treatment or therapy, or take prescribed medications, or to observe prescribed restrictions on diet, activities, or the use of alcohol, drugs or tobacco, that portion of the disability that results from such failure or refusal will not be rated where it is clearly demonstrated that the Soldier was advised clearly and understandably of the medically proper course of treatment, therapy, medication or restriction; or the Soldier’s failure or refusal was willful or negligent and not the result of mental disease or a physical inability to comply.

17.  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.  

18.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Paragraph 3-3 (Disposition) states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635-40.  

DISCUSSION AND CONCLUSIONS:

1.  The complete facts and circumstances surrounding the applicant's disability processing are not available for review with this case.  However, it appears that his continued alcohol abuse and after having missed several appointments, his medical processing was terminated.  

2.  Meanwhile, the applicant was considered by a QRB for retention but he was not selected for retention.  Because he had elected a transfer to the Retired Reserve in the event of his non-selection for retention, the State separated him from the ARNG and transferred him to the Retired Reserve effective 12 June 2010. 

3.  The only diagnosis for PTSD that appears on his records is the Mental Health Discharge Summary that shows he was admitted to what appears to be a VA facility on 15 August 2008 and he was discharged from that facility on 19 August 2008.  His diagnosis was in Axis I, Alcohol dependence, PTSD, Depressive Disorder (Not Otherwise Specified).  

4.  The applicant had apparently gone through the VA system and the VA recognized the PTSD diagnosis as being service connected.  

5.  The applicant provides insufficient evidence to show why his failure to attend inpatient Therapy and other counseling and Therapy should overcome the proper termination of his medical board proceedings.  As such, 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)                                         AR20140003863



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ABCMR Record of Proceedings (cont)                                         AR20140003863



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