IN THE CASE OF:	  

		BOARD DATE:	  3 December 2014

		DOCKET NUMBER:  AR20140007123 


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 Tennessee Army National Guard (TNARNG) records as follows: 

* have the TNARNG complete a line of duty (LOD) investigation 
* have the TNARNG process him through the medical evaluation board/physical evaluation board (MEB/PEB)
* medical retirement by reason of disability

2.  The applicant states he was discharged from the TNARNG.  He received duty-related injuries while on active duty.  He notified his chain of command about the error and stated that the Department of Defense Instruction (DODI) 1338.38 must be followed since his injuries were duty-related.  He did not receive an LOD investigation for his injuries.  The discharge process was not in accordance with DODI 1338.38. 

3.  The applicant provides:

* a self-authored chronology of events
* a letter from the Chief, Case Management Division, Army Review Boards Agency (ARBA)
* a letter from the Congressional and Special Actions Branch, ARBA
* a letter from the Chief of Staff, Joint Forces Headquarters, Tennessee National Guard
* Active Duty Orders 346-036
* Attachment Orders 312-003
* Retention on Active Duty Orders A-12-629569
* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 23 September 2007
* Retired Reserve Orders 126-811
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* selected medical records and physical profiles
* multiple Department of Veterans Affairs (VA) rating decisions

CONSIDERATION OF EVIDENCE:

1.  The applicant was born in November 1960. 

2.  He previously served in the U.S. Marine Corps, ARNG (March 1995 to April 1996), Air Force National Guard, and U.S. Army Reserve (USAR) (November 2001 to July 2005).  

3.  He entered active duty on 12 May 2002 and served in military occupational specialty (MOS) 42A (Human Resources Specialist).  He was promoted to sergeant/E-5 in June 2002.  He was honorably released from active duty to the control of the USAR on 10 June 2005. 

4.  He enlisted in the TNARNG on 6 July 2005 and was assigned to the 568th Personnel Detachment, Nashville, TN.  He was ordered to and entered active duty on 4 January 2006 in support of Operation Enduring Freedom.  He served in Afghanistan from 27 February 2006 to 9 July 2006.  He executed a 6-year extension in the ARNG on 7 April 2006.

5.  He received a Release from Active Duty Noncommissioned Officer Evaluation Report (NCOER) for the rating period 4 January 2006 through 18 May 2006 for his duties as Promotions NCO in Afghanistan.  His Rater rated his NCO Responsibilities as "Success" and his Overall Potential as "Fully Capable."  He passed the Army Physical Fitness Test and he met the height/weight standards.  His Senior Rater rated his Overall Performance and Potential as Superior. 

6.  On 4 December 2006, the U.S. Army Human Resources Command (HRC) published orders retaining him on active duty to voluntarily participate in the Reserve Component Medical Retention Processing Program for completion of medical care.  The orders stated: 

In accordance with DODI 1332.38, member will be entered into the Physical Disability Evaluation System for disability processing at the earliest determination or member unable to return to full military duty within one year of diagnosis of medical condition.  Early separation/release from active duty is required upon completion of medical care and treatment or for separation by reason of physical disability. 

7.  His medical records pertaining to his retention on active duty are not available for review with this case; however, it appears he completed medical care and was ordered released from active duty and transferred to the control of his State ARNG unit. 

8.  He was honorably released from active duty on 23 September 2007 in accordance with chapter 4 of Army Regulation 635-200 (Enlisted Administrative Separations) by reason of having completed his required active service. 

9.  It is unclear what occurred subsequent to his release from active duty.  However, he provides a memorandum, dated 8 April 2008, from the Deputy Chief of Staff, Personnel, TNARNG, to him, that states: 

	a.  A State Medical Review Board (SMRB) has determined that he failed to meet the medical retention standards for continued service in the TNARNG.  The basis for this SMRB finding is Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-41(e)(1) and 3-41(e)(2).  He had presented documentation of conditions that interfere with satisfactory performance of military duties.  

	b.  This is notice of the SMRB's unanimous recommendation for involuntary separation.  The Adjutant General is the separation authority for service members with medical conditions sufficient to definitely interfere with performance of military duty.  This finding is in no way intended to reflect negatively upon his service record.  It is only that he can no longer perform military duties.  Service members with 15 or more years of qualifying service are responsible for immediately contacting their unit of assignment to determine eligibility for retirement at age 60. 

	c.  Any Soldier who fails to meet medical retention standards for duty by any authority will not perform inactive duty training, annual training, active duty for special work, or any other type of duty or training prior to discharge.  An exception to policy may be considered only if there is not a threat to health or safety and must be approved by the State Surgeon.

	d.  If he wishes to appeal this decision, he has 30 days from receipt of this letter to submit to the Deputy State Surgeon's office a written request for referral to a non-duty related PEB for a determination of fitness.  This request will be included in a packet sent through unit channels to Joint Force Headquarters and will contain the original evaluation packet as well.  For further information on the appeals process, he is advised to review Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  During this appeal process, he will not be allowed to perform any type of training as specified above.  Questions regarding this SMRB decision may be directed to the Deputy State Surgeon's office.  

10.  He was honorably discharged from the ARNG on 8 April 2008.  His NGB Form 22 shows he was discharged in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel management), paragraph 8-36(o) and transferred to the Retired Reserve.  He completed 2 years, 9 months, and 3 days of ARNG service during the period in question.  

11.  On 28 April 2008, TNARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter). 

12.  On 5 May 2008, TNARNG published Orders 126-811 transferring him to the Retired Reserve effective 8 April 2008 in accordance with NGR 600-200, paragraph 8-26(o).

13.  On 17 April 2008 and 22 August 2008, the VA issued him a rating decision with regard to his service-connected disabilities.  However, neither decision is available for review with this case.  Additionally, on 20 October 2008, the VA awarded him service-connected disability compensation for/at the rate of:

* degenerative changes of the C4-C5 (previously claimed as cervicalagia), increased from 10 percent to 20 percent effective 20 September 2008
* patellofemoral syndrome of left knee, 10 percent
* patellofemoral syndrome of right knee, 10 percent

The VA denied service-connection for the conditions of radiculopathy of upper extremities; bilateral tinnitus; adjustment disorder with anxiety and depression; and nerve compression syndrome of the left and right upper extremity (previously claimed as carpal tunnel syndrome). 

14.  On 29 September 2010, the VA awarded him service-connected disability compensation for/at the rate of:

* radiculopathy, right upper extremity, 10 percent, effective 16 November 2009
* radiculopathy, left upper extremity, 10 percent, effective 16 November 2009
* tension headaches, currently 0 percent disabling, is increased to 30 percent effective 16 November 2009
* decision related to the adjustment disorder is deferred

15.  On 2 December 2010, the VA awarded him service-connected disability compensation for anxiety disorder, not otherwise specified, with depression, not otherwise specified, claimed as adjustment disorder with anxiety and depression, at the rate of 30 percent effective 16 November 2009. 

16.  On 16 May 2011, the VA awarded him service-connected disability compensation for/at the rate of:

* Right hand arthritis involving the metacarpophalangeal and carpal metacarpal joints, 10 percent effective 16 November 2010
* Sciatica, right lower extremity, 10 percent, effective 16 November 2010
* Sciatica, left lower extremity, 10 percent, effective 16 November 2010
* Anxiety disorder, not otherwise specified, with depression, not otherwise specified, claimed as adjustment disorder with anxiety and depression, continued at 30 percent
* Degenerative disc disease of the thoracic spine, claimed as lumbago, continued at 20 percent
* Osteoarthritis, left first carpometacarpal joint, continued at 10 percent
* Arthritis of the right hip is deferred
* Arthritis of the left him is deferred

17.  On 10 September 2013, by letter, the Chief of Staff, TNARNG advised him that after a review of all available documents, it was determined by that headquarters that he was properly discharged from the TNARNG.  The State Fitness for Duty Evaluation Board found him unfit on 2 April 2008.  As a result, a letter, dated 5 April 2008, was mailed to him allowing him 30 days to appeal the finding of the board.  After no rebuttal was received, the TNARNG published orders discharging him from the ARNG. 

18.  He provides: 

	a.  Radiological Evaluation Report, dated 16 February 2006.  It shows a study of his thoracic spine was completed and the impression was that of mild degenerative change in the lower thoracic spine with no kyphoscoliosis. 

	b.  DD Form 689 (Individual Sick Slip), dated 13 December of an unknown year.  It shows he followed up on headaches and knee pain. 

	c.  Medical document, dated 28 December 2006, that shows he was seen at Lincoln Trail Diagnosis, Elizabethtown, KY.  He underwent an MRI of the cervical spine.  The document shows he had a history of complaints of neck pain, bilateral upper extremity tingling.  The impression was that of cervical degenerative changes at multiple vertebrate. 

	d.  Standard Form 603A (Dental Record), dated 18 September 2006, for a dental evaluation. 

	e.  Medical report, dated 12 June 2007, from the Neurological Institute of Kentucky.  It states he underwent an anterior cervical diskectomy and fusion by the neurosurgical service at C4-5 on 12 April 2007.  He underwent a cervical spine x-ray the previous month and that showed good alignment of the bones and cervical plate. 

	f.  Discharge/home instruction sheet, dated 12 April 2007, with instructions and listing of medications. 

	g.  Medical document, dated 11 July 2007, that shows he was seen at Lincoln Trail Diagnosis, Elizabethtown, KY, for left knee pain.  The impression was that of mild degenerative change of posterior horn of medial meniscus without evidence of tear; small loculated cystic legion anterior to anterior horn of medial meniscus most likely representing loculated focus of synovial fluid or ganglion cyst; and low grade chondromalacia patella most pronounced medially with small amount of joint effusion. 

	h.  Medical document, dated 11 July 2007, that shows he was seen at Lincoln Trail Diagnosis, Elizabethtown, KY, for chronic progressive pain.  The impression was that of chondral injury and chondral loss in the patellofemoral compartment with a potential unstable chondral fragment in the central patella; partial thickness chondral loss in the medial femorotibial compartment; small effusion; and the menisci and ligaments were intact. 

	i.  A letter, dated 29 August 2007, from Neurological Institute of Kentucky, clarifying certain points of his previous medical appointment. 

	j.  Temporary physical profile, dated 23 July 2007, for status post cervical surgery on 12 April 2007; lumbar; bilateral knees; bilateral elbows; and bilateral wrist pain. 

	k.  Letter, dated 27 February 2008, from the VA concurring with the recommendation of the Fit For Duty Evaluation.  The medical doctor also adds that he had the additional medical conditions of upper extremities, hands, cervical thoracic and upper lumbar had a limited range of motion; cubital tunnel syndrome that had not cured; migraine headaches and temporomandibular joint problem; he had been referred to the psychiatry for PTSD evaluation.  He also has in his lower extremities chondromalacie in the left knee and a chondral injury in the right knee.  In summary, he cannot fulfill the requirements of his military specialty. 

19.  An advisory opinion was received from the NGB in the processing of the case.  It consists of input from the State and the NGB as follows: 

	a.  A memorandum for record, dated 26 June 2014, from the TNARNG Deputy State Surgeon for Administration, Subject: Response to Inquiry from [Applicant's] Request for Referral to an MEB.  She states: 

		(1)  On 1 March 2008, [Applicant], a SGT with the 568th Personnel Service Battalion, submitted a letter in response to the requirements of the SMRB checklist which was previously called the "Fitness for Duty Evaluation" (FFDE) Board.  In his letter, he wrote, "I am not at military standard, if the evaluation findings concurs with both of my doctors, I am requesting to medically retire.  I have over 15 years of service."  He was found unfit reference:  Army Regulation 40-501, paragraph 3-41(e)(1) and 3-41(e)(2), General and miscellaneous conditions and defects.  Sub-paragraph (e) of the regulation, Miscellaneous conditions and defects, states conditions and defects not mentioned elsewhere in this chapter are causes for referral to an MEB, if: 

			a.  The conditions (individually or in combination) result in interference with satisfactory performance of duty as substantiated by the individual's commander or supervisor.  Any medical condition, injury or defect (individually or in combination) that prevents the Soldier from performing any of the functional activities listed under item number 5 on DA Form 3349 (Physical Profile), and

			b.  The individual's health or well-being would be compromised if they were to remain in the military service.  

The SMRB findings were based on the consideration of the multitude of conditions that were not singly found to be unfitting but together, as a whole, were deemed to cause him to be unfit for service.

		(2)  No LOD investigations were submitted to the SMRB for the medical issues evaluated.  He can request an LOD investigation through the Army Board for Correction of Military Records (ABCMR).  Without a completed LOD for an unfitting medical condition, he would be ineligible for MEB processing.  He has been awarded service-connection through the VA at a combined disability rating of 100 percent.  

		(3)  TNARNG Orders 126-811, dated 5 May 2008, granted him a medical loss code ensuring that he would be eligible for retirement with over 15 but less than 20 years of service.  On 8 April 2008, a letter for the applicant disclosing the SMRB findings was forwarded for his records.  The letter, signed by the Deputy Chief of Staff, Personnel, described his responsibility to submit a written request (within 30 days of receipt) to appeal the SMRB findings to a Non-Duty PEB.  He did not appeal the decision of the SMRB to the Deputy State Surgeon's (DSS) Office. 

		(4)  The Soldier's 15-year retirement letter, dated 28 April 2008 and signed by the Deputy Chief of Staff, Personnel, explained the applicant's eligibility for retirement from the TNARNG under Title 10, U.S. Code (USC), section 12731b to apply for retired pay on attaining age 60 was completed.  This document was not found in the records the applicant presented.  

		(5)  In review, he received the medical discharge he requested in 2008. He did not submit a written request to DSS disputing his medical discharge.  He is currently receiving 100 percent disability from the VA and he can request his retirement pay to begin at the age of 60.  He can submit a request for the LOD to the ABCMR. 

	b.  An NGB advisory official summarized his request as a request for an LOD investigation for his medical conditions and to be processed by a MEB/PEB.  The advisory official recommended disapproval.  He stated: 

		(1)  The applicant was determined medically unfit for continued service by the TNARNG SMRB, and on 8 April 2008 he was transferred to the Retired Reserve.  His VA disability rating is 100 percent.  He is eligible for retired pay at age 60 because he had over 15 years of service when retired. 

		(2)  The TNARNG provided the following information:  The applicant sent a letter to the SMRB stating that he believed he was not fit for duty and if the board determined the same, he requested a medical retirement, which was granted.  The SMRB found him unfit for retention based on the consideration of several conditions that did not individually preclude him from retention but taken as a whole, he was unfit for duty.  The reference for this finding is Army Regulation 40-501 (dated 14 December 2007), paragraph 3-41(e), for "Miscellaneous conditions and defects."  Subparagraph 3-41e (1), states, "The conditions (individually or in combination) result in interference with satisfactory performance of duty... "
		(3)  A letter was sent to the applicant informing him of the decision of the SMRB and informed him he could appeal the decision to a PEB.  He did not submit an appeal.  The NGB Retirement Services Section was consulted and concurs with the recommendation of disapproval because the Soldier is already medically retired and has a 100 percent VA disability rating, and therefore will not receive anything additional from an MEB/PEB.  

		(4)  The NGB Personnel Division and the TNARNG concur with this recommendation.

20.  He provided a rebuttal to the advisory opinion.  He stated: 

	a.  The TNARNG stated that he was discharged by the guidance of Army Regulation 40-501, paragraph 3-41e(1) and (2), general and miscellaneous conditions and defects.  The miscellaneous conditions and defects not mentioned elsewhere in this chapter are causes for referral to an MEB.  His DA Form 3349 dated 5 April 2008 contained headaches, knee pain, carpal cubital tunnel syndrome, TMJ, cervical disc herniation, and PTSD.  His medical conditions were mentioned.  He references Army Regulation 40-501, paragraph 2-5, Dental, TMJ; 3-12 Upper Extremities (carpal/cubital tunnel syndrome); 3-33 Anxiety (PTSD/Anxiety); 3-20 Neck (Cervical herniation); and 3-14(e) knee pain.  He is enclosing 2 MRI's for the right knee and left knee.  The Board should note the term chondromalacia and effusions term is used in reference as a cause for an MEB.  This was sent to the SMRB and they referenced the right and left knee on the evaluations.  Also, paragraph 3-30 references migraine tension and cluster headaches.  

	b.  The TNARNG states "No LOD investigations were submitted to SMRB for medical issue evaluated.  His battalion commander was informed on 24 April 2008 that all of his injuries occurred on active duty, this communication was done by email (previously submitted to ABCMR).  Army Regulation 600-8-4 (Line of Duty Investigations), paragraph 3-1 states "The unit commander will conduct an informal LOD when circumstances warrant or require one."  Paragraph 3-6 states "The Battalion Commander may approve all informal LOD."  This was 12 days before the appeal date.  

21.  DOD Instruction 1332.38 (Physical Disability Evaluation) implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability.  Paragraph E3.P3.5.3. (Overcoming the Presumption).  The presumption of fitness rule shall be overcome when:

		(1)  E3.P3.5.3.1. Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or 

		(2)  E3.P3.5.3.2. Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or 
		
		(3)  E3.P3.5.3.3. The condition for which the member is referred is a chronic condition and a preponderance of evidence establishes that the member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period.  When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration.

22.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  Paragraph 3-4 states under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LD 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 cause of performing active duty or inactive duty training  (IDT).

	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.

23.  Army Regulation 135-178 (USAR Enlisted Administrative Separation) in effect at the time, established the policies, standard, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components (RC).  Chapter 3 states discharge will be accomplished when it has been determined that an enlisted member is no longer qualified for retention by reason of medical unfitness unless the member requests and is granted a waiver or is eligible for transfer to the Retired Reserve.  RC members 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.  

24.  NGR 600-200 establishes standards, policies, and procedures for the management of ARNG enlisted Soldiers.  Chapter 8 provides for separation of ARNG Soldiers.  Paragraph 8-36(o) provides for discharge or transfer to the Retired Reserve. 

25.  Army Regulation 600-8-4 (Line of Duty, Policy, Procedures, and Investigations) prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a soldier.  It provides standards and considerations used in determining line of duty (LD) status.  One of the reasons for conducting a line of duty investigation is for disability retirement and severance pay.  

	a.  For Soldiers who sustain permanent disabilities while on active duty to be eligible to receive certain retirement and severance pay benefits, they must meet requirements of the applicable statutes.  PEB determinations are made independently and are not controlled by LOD determinations.  However, entitlement to disability compensation may depend on those facts that have been officially recorded and are on file within the Department of the Army (DA).  This includes reports and investigations submitted in accordance with this regulation.  

	b.  Line of duty investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree.  Depending on the circumstances of the case, an LD investigation may or may not be required to make this determination.  Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence.  The unit commander will conduct an informal LD investigation when the circumstances warrant or require one.  This starts with the initiation of DA Form 2173 (Statement of Medical History and Duty Status). 

26.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, as well as medical fitness standards for retention and separation, including retirement.  

	a.  Chapter 3 provides for various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals.  These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of their duties; may compromise or aggravate the Soldier’s health or well-being if they were to remain in the military Service; may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the Government if the individual were to remain in the military Service.

	b.  Chapter 10 sets basic policies, standards, and procedures for medical examinations and physical standards for the ARNG.  The Clinical Section, Office of the Chief Surgeon, is the office responsible for management of all issues pertaining to this chapter.  DODI 1332.38 states that members with non-duty related impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits.  Further explanation is available in Policy Memorandum #4, Processing Reserve Component (RC) Non-Duty Related Cases.  This policy memorandum outlines the procedures and requirements for processing boards on RC Soldiers with non-duty related impairments that are pending separation for medical disqualification. Determination of whether a non-duty case is forwarded to the PEB is at the request of the Soldier.  The Soldier will have a completed LOD or memo that notifies him/her of non-duty related findings (Not In the Line of Duty -NILOD).  The Soldier may not challenge the PEB findings in person.  The State personnel office is responsible for notifying the Soldier, in writing, that his/her injury is NILOD and that he/she is pending separation for a medical disqualifying condition.  The notification will also advise the Soldier that he/she has the right to prepare a Non-Duty PEB packet for a fitness determination.  The State Surgeon is responsible for completing the following: Physical Profile, a Fitness for Duty examination and obtaining the appropriate civilian consults from the Soldier (non-Duty related cases are the Soldier’s responsibility and he/she must provide the appropriate medical consults from his/her civilian physician).  The Commander is responsible for counseling the Soldier and completing a Commander’s Letter of Duty Performance.  The Soldier is responsible to request his/her packet be submitted to the PEB for adjudication.  The Soldier is responsible for preparing his/her packet for submission to the PEB.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, an ARNG Soldier, entered active duty on 4 January 2006 and was honorably released from active duty on 23 September 2007 to the control of his State ARNG by reason of completion of his required active service.  His separation physical is not available for review with this case.  In the absence of a permanent physical profile, a diagnosis of a condition that failed retention standards and/or was found unfitting at the time, it is presumed he was fully qualified for separation.

2.  Shortly after his release from active duty, as identified by his State, he was found to not meet retention standards for miscellaneous conditions and defects.  Most of his medical records are not available for review with this case; however, it appears he provided documents that led the State to have his records to be considered by an SMRB. 

3.  The State SMRB determined he failed retention standards for continued service in the TNARNG.  He was advised of his rights and was given the opportunity to appeal that decision and demand consideration by a non-duty related PEB.  He did not do so.  Instead, he requested transfer to the Retired Reserve.  Since he had completed at least 15 but less than 20 years of qualifying service, he was transferred to the Retired Reserve. 

4.  He confuses a PEB under the PDES and an NDR PEB. 

	a.  To be eligible for a duty-related medical processing, an RC Soldier not on active duty must have a medically unacceptable condition and the medical condition must be related to service either by being incurred while on active duty or when not incurred while on active duty, have permanently aggravated by military service.  A duty-related condition is normally validated by an injury or disease, a DA Form 2173, and an approved line of duty determination. 

	b.  An NDR PEB is a non-line of duty PEB that reviews the Soldier's condition solely for a determination of fitness for continued service in the RC.  

5.  In his case, the State Surgeon reviewed his medical records and determined he was unfit for retention in the ARNG.  He was notified, counseled, advised, and presented with his options, and he made an election to transfer to the Retired Reserve.

6.  He raises three issues: initiation of an LOD, consideration by an MEB/PEB, and medical retirement: 

	a.  As for the LOD, it is unclear what condition he refers to, whether it is a disease or an injury, the source of the condition, when it was incurred, and how it was incurred.  His commander at the time would have been in the best position to make this determination.  More than 7 years have passed and there is insufficient evidence to determine what occurred in 2006 or 2007.  More importantly, LOD decisions pertaining to ARNG Soldiers are initiated by the State and are approved by the NGB.  Here, both the State and the NGB determined no reason to initiate an LOD.  

	b.  As for the MEB/PEB, under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the LD criteria to be eligible to receive retirement and severance pay benefits that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training and 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.  Here, he provides no evidence that there is an unfitting condition that warranted entry into the PDES.  

	c.  As for medical retirement, the applicant was in fact medically retired in April 2008.  That is why he received a 15-year letter.  

7.  After a comprehensive review of his request, his available records, and the evidence he provided, it appears he was properly discharged from the ARNG.  He has not shown an error or an injustice; therefore, he is not entitled to 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)                                         AR20140007123



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007123



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1