IN THE CASE OF:	   

		BOARD DATE:	  6 November 2014

		DOCKET NUMBER:  AR20140011758 


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, a medical evaluation board (MEB) and disability retirement or a finding of fitness for duty to continue her Army National Guard (ARNG) service. 

2.  The applicant states, in effect:

	a.  She was inappropriately discharged from military service while undergoing medical evaluations in preparation for a medical review board.  The State Surgeon’s Office discharged her without medical documentation or conducting an actual medical board.  She was discharged for being medically unfit for retention, but there was no documentation supporting the discharge.

	b.  An individual was relieved of duty when the applicant attempted to have them fix the issue and she was told by replacement personnel that there was no record of her medical board processing, no records of any medical documents on file with them, and no records of a medical condition or discharge.

	c.  She was never issued a National Guard Bureau (NGB) Form 22 or discharge orders.  She found them in the integrated Personnel Electronic Records Management System (iPERMS).

	d.  She wants her records reviewed by a medical review board evaluation to determine if she should receive a medical retirement or allow her the opportunity to return to military duty and finish her years for retirement.

3.  In an email, dated 17 September 2014, she states:

	a.  She has been referred back to the Board to change her discharge because the California Army National Guard (CAARNG) does not have any records to support medically discharging her from the military.  There is no medical documentation or physician certification to warrant a medical discharge.

	b.  She has spoken with the State Surgeon's Office and was told her NGB Form 22 would have to be changed and the Board is the only department that can change it.  That office is willing to state there is no medical documentation on file and they do not have any records regarding medical processing so her reentry eligibility (RE) code can be changed.

4.  The applicant provides:

* NGB Form 22 for the period ending 1 January 2007
* Email, dated 14 January 2013
* CAARNG discharge orders, dated 12 January 2007
 
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.  Having prior service in the CAARNG, the applicant enlisted in the CAARNG on 6 October 1997.  She served as a unit supply specialist.

3.  Her record is void of the specific facts and circumstances surrounding her discharge action.  However, CAARNG discharge orders and her NGB Form 22 show she was honorably discharged  on 1 January 2007 under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), for being medically unfit for retention standards.  She completed 12 years of service for retired pay.

4.  There are no service medical records available for review.

5.  NGR 600-200, in effect at the time, set forth the basic authority for the personnel management of enlisted personnel of the ARNG.  Paragraph 8-26j(1) stated a Soldier would be discharged from the ARNG for being medically unfit for retention standards.  It also stated commanders who suspected that a Soldier might not be medically qualified for retention would direct the Soldier to report for a complete medical examination.

6.  Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay.

7.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that when a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of his or her grade or rank because of physical disability, the commander will refer the Soldier for medical evaluation according to Army Regulation 40-501 (Standards of Medical Fitness).

8.  Army Regulation 635-40 also states that under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, in the absence of evidence to the contrary it must be presumed the applicant's separation processing was administratively correct and in conformance with applicable regulations.  Without the discharge packet and her service medical records to consider, there is an insufficient evidentiary basis for granting the requested relief.

2.  Although she contends the State Surgeon’s Office is willing to state there is no medical documentation on file, she provides no evidence of their willingness to corroborate her contentions.



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)                                         AR20140011758





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ABCMR Record of Proceedings (cont)                                         AR20140011758



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