BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140009131 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 August 1991 to show he was medically discharged.

2.  The applicant states:

* he was hospitalized several times during his active service
* he was demobilized while hospitalized without resolution of his health issues
* he was never given proper medical care before he was discharged
* he was discharged with health conditions that became permanent with long-lasting effects through today

3.  The applicant provides extracts of his 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.  After having prior honorable service in the Regular Army, the applicant enlisted in the Puerto Rico Army National Guard (ARNG) on 8 March 1990.

3.  On 6 December 1990, he was ordered to active duty in support of Operations Desert Shield/Desert Storm.  On 3 August 1991, he was honorably released from active duty to the control of his Puerto Rico ARNG unit due to the expiration of his term of service.

4.  The applicant provided extracts of his medical records, dated 1991, showing he was seen and treated on multiple occasions for chest pain and testicular pain.  He was also seen for pain in the lower ribs and abdominal pain.

5.  On 1 February 1992, he was honorably discharged from the PRARNG and transferred to the U.S. Army Reserve Control Group (Reinforcement).  His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows in:

* item 18 (Remarks) – he was discharged without personal notice
* item 23 (Authority and Reason) – National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27g

6.  U.S. Army Reserve Personnel Center Orders D-07-232648, dated 28 July 1992, honorably discharged him from the Ready Reserve.  The authority for discharge is shown as Army Regulation 135-178 (Separation of Enlisted Personnel).

7.  His records are void of and he failed to provide any evidence showing:

* he was found unfit for active duty or retention due to a medical condition
* he was referred to a medical evaluation board (MEB)
* he was processed through the Army Physical Disability Evaluation System (PDES)

8.  National Guard Regulation 600-200, paragraph 8-27g, in effect at the time, stated Soldiers were discharged from the State ARNG when the Soldiers were determined to be unsatisfactory participants per Army Regulation 135-91 (Service Obligations, Methods, Participation Requirements, and Enforcement Procedures), chapter 4.  Commanders could recommend retention of Soldiers who had accrued nine absences within a 1-year period.  This regulation did not provide a characterization of service appropriate for Soldiers separated because of unsatisfactory participation but referred to Army Regulation 135-178.

9.  Army Regulation 135-91, in effect at the time, stated a Soldier was an unsatisfactory participant when nine or more unexcused absences from scheduled inactive duty training occurred during a 1-year period.  An unexcused absence from annual training occurred when Soldiers failed to attend or complete the entire period of active duty.  This applied to a Soldier of a unit or U.S. Army Reserve Control Group.

10.  Army Regulation 135-178, in effect at the time, provided for the discharge or transfer to the U.S. Army Reserve Control Group of statutorily-obligated enlisted members who failed to participate satisfactorily in unit training as required.  This regulation applied to enlisted Soldiers of the ARNG of the United States and the U.S. Army Reserve.  An honorable characterization of service was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty for military personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  A general discharge was warranted when significant negative aspects of the Soldier's conduct or performance outweighed positive aspects of the Soldier's military record.

11.  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 member is unfit because of physical disability to perform the duties of his or her office, grade, rank, or rating.

	a.  The mere presence of impairment does not, in itself, justify a finding of unfitness because of physical disability.

	b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB.  Those members who do not meet medical retention standards are referred to a physical evaluation board for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have received a medical discharge at the time of his initial separation from active duty after his Gulf War service.

2.  Although his complete military medical records are not available, his records are void of any evidence and he failed to provide evidence showing he was found unfit due to a medical condition, he was referred to an MEB, or that he was processed through the Army PDES.

3.  The available records show he was released from active duty due to the expiration of his term of service and he was subsequently discharged from the Puerto Rico ARNG due to unsatisfactory participation.

4.  In view of the foregoing evidence, 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 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)                                         AR20140009131



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ABCMR Record of Proceedings (cont)                                         AR20140009131



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