IN THE CASE OF:	  

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20140011241 


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:

	a.  Reinstatement in the Arkansas Army National Guard (ARARNG) in an administrative position until a line of duty (LOD) and a formal physical evaluation board (PEB) can be done to determine if retention is possible.

	b.  His military occupational specialty (MOS) be changed to 68W (Health Care Specialist).

2.  The applicant states, in effect:

	a.  No LOD was done when his problem was brought to Sergeant First Class (SFC) W.

	b.  During active duty he was put on kitchen patrol (KP) duty every drill while he was being seen by a medical professional, Dr. RK.

	c.  Once Dr. RK determined that no diagnosis of his condition could be determined, he recommended that he not be allowed to perform certain tasks until a diagnosis could be confirmed.  SFC W said that with those restrictions he could no longer be in the military and to go home until a decision was made.

	d.  During monthly training SFC W told him to complete and sign a form with three choices:  (1) request to go to a PEB, (2) be placed in a Reserve Component (RC), or (3) be discharged from the military.  SFC W did not correctly counsel him as to his choices.  SFC W advised him his only option was to be discharged and to sign the paperwork and go home and get out.  He asked to speak with the captain but SFC W stated there was nothing to discuss with the captain.

	e.  He went to a Medical Review Board at Camp Robinson just to be told he would be discharged.

	f.  He has not had any episodes in 4 years and he believes a formal PEB will show he is fit for retention.

	g.  He should be allowed to change his MOS to 68W.  He has completed training as an EMT-B (emergency medical technician-basic) with no complications or issues.  He could be very beneficial to his unit.

3.  The applicant provides:

* his Enlisted Record Brief
* a memorandum, dated 13 September 2008, from Department of the Army Medical Command, Camp Joseph T. Robinson, North Little Rock, subject: Request for Determination of Physical and Medical Suitability
* a memorandum, dated 6 October 2008, from the Military Department of Arkansas, Medical Command, subject: Results of Profile Board for [the applicant]
* DA Form 3349 (Physical Profile), dated 4 October 2008
* a Personnel Action - Request for Discharge, dated 8 October 2008
* a memorandum, dated 20 October 2008, from B Battery, 2nd Battalion, 142nd Field Artillery, Siloam Springs, AR
* a memorandum, dated 8 October 2008, subject: Notification of Intent
* his Army National Guard Retirement Points History Statement, prepared on 28 October 2008
* his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) with an effective date of 28 October 2008
* a letter, dated 5 December 2013, from the ARARNG to his Congressional Representative

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 11 October 2006, he enlisted in the ARARNG.  On 31 May 2007, he was ordered to initial active duty for training (IADT).  He completed basic combat and advanced individual training and was awarded MOS 13B (Cannon Crewmember).  On 29 September 2007, he was released from IADT and returned to Battery B, 2nd Battalion, 142nd Field Artillery.

3.  On 13 September 2008, the Medical Command, North Little Rock, AR notified the applicant's commander that he did not meet retention standards.

4.  A DA Form 3349, dated 4 October 2008, shows he was assigned the numeral designators of "3" under P (physical capacity) and "2" under E (vision-eyes).  His medical condition was identified as seizures.  This profile is shown to be permanent.  Block 10 (Other) states he did not meet retention standards per Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-30i.  This form was signed by the profiling officer and the approving authority.  However, it was not signed by his immediate commander.

5.  A memorandum, dated 6 October 2008, from the Medical Command, Camp Robinson notified the applicant's commander of the results of a Profile Board for the applicant.  He was found to be unfit for retention in the ARARNG per paragraph 3-30i of Army Regulation 40-501 due to seizures.  If he wanted to appeal the board's decision he could request a non-duty related PEB.  The memorandum is signed by the Deputy State Surgeon.

6.  On 20 October 2008, the applicant's unit notified him that a review of his Army medical records, to include his current retention physical, by the appropriate Department of the Army authority revealed that he no longer met Army medical standards for retention based on his current medical condition of seizures in accordance with chapter 3 of Army Regulation 40-501.  He was required to choose one of the following options:

* discharge from the Army National Guard (ARNG) and as a Reserve of the Army with an honorable discharge
* transfer to the Retired Reserve (if eligible)
* request a non-duty related PEB for retention ruling only

7.  On 27 October 2008, the applicant submitted a notification of intent and indicated he elected to be discharged from the ARNG and as a Reserve of the Army.

8.  On 28 October 2008, he was discharged from the ARARNG and as a Reserve of the Army by reason of being medically unfit for retention.  He was assigned a reentry eligibility code of "3" (eligible for reenlistment with a waiver).

9.  Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention and related policies and procedures.

	a.  Paragraph 3-30i. Seizure disorders and epilepsy.  Seizures by themselves are not disqualifying unless they are manifestations of epilepsy. However, they may be considered along with other disabilities in judging fitness. In general, epilepsy is disqualifying unless the Soldier can be maintained free of clinical seizures of all types by nontoxic doses of medications.

	b.  Chapter 7 provides guidance on the classification of individual Soldiers according to functional abilities.  The physical profile serial system is based primarily upon the function of body systems and their relation to military duties. The functions of the various organs, systems, and integral parts of the body are considered.  Since the analysis of the individual’s medical, physical, and mental status plays an important role in assignment and welfare, not only must the functional grading be executed with great care, but clear and accurate descriptions of medical, physical, and mental deviations from normal are essential.  In developing the system, the functions have been considered under six factors designated “P–U–L–H–E–S.”  Four numerical designations are used to reflect different levels of functional capacity.  The basic purpose of the physical profile serial is to provide an index to overall functional capacity.  Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation 1, 2, 3, or 4.

	c.  Paragraph 7-3d(2) states that a physical profile designator of “2” under any or all factors indicates that an individual possesses some medical condition or physical defect that may require some activity limitations.

	d.  Paragraph 7-3d(3) states a profile containing one or more numerical designators of “3” signifies that the individual has one or more medical conditions or physical defects that may require significant limitations. The individual should receive assignments commensurate with his or her physical capability for military duty.
	e.  Table 7-1 shows a numeral designation of "3" under P indicates a member is unable to perform full effort except for brief or moderate periods.  A numeral designation of "2" under "E indicates a member has distant visual acuity correctable to not worse than 20/40 and 20/70, or 20/30 and 20/100, or 20/20 and 20/400.

	f.  Paragraph 10-26 states National Guard Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness only.  

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 cause 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 RC Soldiers.  It states that an 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 casual relationship between the disability and the required military duty.

11.  National Guard Regulation 600-200 (Enlisted Personnel Management) governs the policies and procedures for assigning, attaching, removing, and 
transferring enlisted Soldiers of the ARNG/ARNGUS.  Chapter 8 of the regulation in effect at the time provided for the discharge of Soldiers deemed medically unfit for retention per Army Regulation 40-501 and National Guard Regulation 40-501.  Paragraph 8-35l(8) refers to chapter 15 of Army Regulation 135-178 (ARNG and Army Reserve enlisted Administrative Separations) for separations due to a member being found 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.

12.  Army Regulation 135-178, paragraph 15-1k (Medically unfit for retention), states discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention by reason of medical unfitness 
(Army Regulation 40-501), unless the Soldier requests and is:

* granted a waiver under Army Regulation 40-501, as applicable
* determined fit for duty under a non-duty related PEB fitness determination (Army Regulation 635-40)
* eligible for transfer to the Retired Reserve (Army Regulation 140-10).

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should be reinstated in the ARARNG and granted a PEB to determine if he is fit for duty.

2.  His letter of notification, dated 20 October 2008, clearly shows that at the time he was determined not to meet retention standards due to his seizures, he had the option of electing a non-duty related PEB for a retention ruling only.  Instead, he chose to be discharged from the ARARNG.  Although he contends he was not properly counseled, he has provided no substantive evidence to corroborate his contention.  

3.  The applicant was processed for discharge and properly afforded the opportunity to request a non-duty related PEB in accordance with Army regulations.  Therefore, there is no basis on which to reinstate him in the ARARNG and place him before a non-duty related PEB over 4 years after he received a properly-issued discharge.

4.  The applicant was assigned an RE code of "3."  The disqualification upon which the RE-3 code was based may be waived for enlistment purposes.  If the applicant believes he is now medically qualified for enlistment, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  These individuals can best advise a former service member as to the needs of the service at the time and are required to process enlistment waivers for the applicant’s RE code.  Any change to his MOS would be discussed at that time.  Each Army MOS has different requirements and standards.  Therefore, even if he is eligible for enlistment, there are additional requirements that he may need to meet in order to change his MOS.

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)                                         AR20140011241



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ABCMR Record of Proceedings (cont)                                         AR20140011241



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