IN THE CASE OF:  	  

		BOARD DATE:  28 July 2015	  

		DOCKET NUMBER:  AR20140018161 


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.  correction of his military records to show he retired by reason of physical disability in 2008 in lieu of being released from active duty for training or medical retirement from the Army National Guard (ARNG) in 2013; and,

	b.  promotion to sergeant (SGT)/E-5.

2.  The applicant states:

	a.  His promotion to E-5 was overlooked due to his disability.

	b.  He was injured on active duty in 2008 and he was given a favorable line of duty (LOD) determination in 2013 for this injury.

	c.  He served 4-plus years honorably only to have his military service cut short from an injury.

	d.  He was discharged without a medical evaluation board (MEB) or LOD determination.  After filing a Congressional complaint, his discharge was revoked and he was reinstated in the service to complete an LOD investigation.  After an LOD determination was made, he asked why he wasn't considered by an MEB.

	e.  Four years and several months later, he was given the option of an MEB.  Due to his Congressional complaint, he feels he was being pushed out and was forced to decline the MEB due to 2 additional years (new contract) for the MEB process and threats of being absent without leave (AWOL) from medical appointments.

	f.  He tried to go through the proper medical channels for 4 years.  He should have gone through the MEB process within his first year based on his injury.

	g.  After pushing through for 4 years, he was not given the proper promotion because of his disabilities.

	h.  He further contends he was assigned a physical profile for his entire Army National Guard (ARNG) career, but he had to seek medical treatment from his civilian provider at his own personal expense.  Now he is unable to find employment because of his service-connected disability.

3.  The applicant provides:

* LOD determination
* DA Form 2173 (Statement of Medical Examination and Duty Status)
* National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service) for the periods ending 17 January 2013 and 13 January 2014
* letters from his physician, dated 10 January 2014 and 17 April 2015
* Congressional complaint, dated 12 March 2013
* response to separation proceedings, dated 16 September 2012
* discharge orders, dated 17 January 2013
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* student program audit report
* verification of military experience and training
* certificates of achievements
* Standard Form 600 (Chronological Record of Medical Care)
* DA Form 3349 (Physical Profile)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the West Virginia ARNG (WVARNG) on 5 August 2008 for a period of 8 years.  He was ordered to active duty for training on 27 August 2008 and he was released from active duty on 27 February 2009.  He was advanced to specialist (SPC)/E-4 effective 20 April 2010.

2.  He provided a DA Form 3349, dated 10 June 2012, which shows he was issued a permanent  physical profile rating of 3 in his lower extremities factor for chronic knee pain with arthritis.  This form also states:
* he has chronic knee arthritis and Army Physical Fitness Test limitations
* he has had knee pain and grade II/III chrondromalacia
* he has a lateral meniscus tear of his right knee
* this has been ongoing for over a year with no definitive treatment and persistent limitations
* his Medical Retention Decision Point has been reached and restrictions as outlined by civilian orthopedic surgeon do not meet retention standards
* he would be unable to perform basic military duties

3.  He provided a Standard Form 600, dated 27 June 2012, which states he was found not medically fit for retention and should be processed for separation as not being medically fit for duty.

4.  His records contain a memorandum from the Office of the Adjutant General, State of West Virginia, dated 7 August 2012, which states:

	a. The WVARNG State Surgeon evaluated and determined the applicant was not retainable.

	b. The applicant would undergo separation proceedings.

5.  On 18 August 2012, he was notified of his pending separation under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations) and National Guard Regulation 600-200 (Enlisted Personnel Management) due to being medically unfit for retention.

6.  On 18 August 2012, an LOD investigation was initiated.

7.  He was honorably discharged from the ARNG on 17 January 2013.  It appears these discharge orders were revoked on an unknown date.

8.  He provided a memorandum from NGB, dated 11 June 2013, which states a DA Form 2173 for the applicant for right knee patellofemoral syndrome that occurred during advanced individual training was approved as "IN LINE OF DUTY."  He provided a DA Form 2173, dated 22 March 2013, which shows he complained of knee pain while in advanced individual training on 18 November 2008 at Fort Leonard Wood, MO.

9.  On 2 October 2013, he was notified of his pending separation under the provisions of Army Regulation 135-178 and National Guard Regulation 600-200 due to being medically unfit for retention.

10.  On 2 October 2013, he declined his right to an MEB, requested to have an approved LOD due to an injury he sustained during his initial entry training, and to be medically discharged.

11.  On 30 October 2013, he acknowledged receipt of the notification of separation proceedings, waived his right to counsel, waived his right to counsel for representation at the board hearing, and elected to submit a statement in his own behalf; however, his statement is not available for review.

12.  He was honorably discharged from the ARNG in the rank of SPC on 13 January 2014 for not meeting medical retention standards.

13.  There is no evidence showing he was recommended for promotion or promoted to SGT by his chain of command prior to his discharge.

14.  He provided a letter from an orthopedic surgeon, dated 10 January 2014, which states:

* the applicant has been a patient since 2010
* he has reviewed the applicant's military and medical records
* he finds evidence in the applicant's records of a knee injury and diagnosis of patellofemoral syndrome on 18 November 2008 during his military service
* he was issued an LOD determination for this diagnosis
* the applicant has chronic bilateral knee pain
* he has undergone arthroscopy as well as multiple injections for his right knee

15.  Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

16.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotion and reduction function of the military personnel system.  It states, in pertinent part, that the State Adjutant General is the convening and promotion authority of all promotion boards to sergeant (SGT) through sergeant major (SGM).  This authority may be further delegated by each State.  Unit commanders must validate the NGB Form 4100-1B-R-E (Army National Guard Enlisted Promotion Point Worksheet Sergeant/Staff Sergeant Boards) and recommend or not recommend promotion board consideration for all eligible Soldiers within their commands.  Time in grade is computed from the Soldier’s date of rank in the current grade.  Time in service is computed from the Soldier’s pay entry basic date.  All Soldiers must go through the board process before they may be selected and promoted.  Promotion to SGT through SGM are announced in orders.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his military records to show he was retired by reason of physical disability in 2008 in lieu of released from active duty for training.  In addition, he states he should have been promoted to SGT while awaiting separation processing for his disability. 

2.  The evidence confirms:

	a.  He was ordered to active duty for training on 27 August 2008 and he was released from active duty on 27 February 2009.

	b. He was promoted to SPC in April 2010 while a member of the WVARNG.

	c.  In 2013, his right knee patellofemoral syndrome that occurred during advanced individual training was approved as being in the LOD.

	d. On 2 October 2013, while pending separation from the WVARNG for not meeting medical retention standards, he declined his right to an MEB and requested to be medically discharged.

	e. On 13 January 2014, he was honorably discharged from the ARNG for not meeting medical retention standards.

3.  There is no evidence of record and the applicant did not provide any evidence showing a medical condition rendered him unable to perform his duties in 2008.  He was promoted to SPC while a member of the WVARNG in 2010 which indicates he was successfully performing his military duties 2 years after his release from active duty for training.  Therefore, there is insufficient evidence to show a medical retirement in 2008 was warranted.

4.  Concerning his service in the WVARNG, he declined an MEB and only sought written documents to support an LOD for his knee injury (pain) that occurred while attending initial active duty training.  During the separation process, he declined counsel and made his elections of his own free will.  As he declined an MEB, there is no determination of a physical disability that would warrant a disability rating.  Though his LOD and physical profile are noted, there is insufficient evidence to support consideration by a physical evaluation board as he declined the MEB.  As such, his WVARNG separation is proper and equitable. 

5.  His request for promotion to SGT/E-5 was noted.  However, there is no evidence showing he was recommended for promotion or promoted to SGT prior to his discharge from the WVARNG.  Promotion is a function of the State Adjutant General based upon recommendations from the chain of command.  Therefore, there is insufficient evidence on which to base a promotion to SGT.

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)                                         AR20140018161



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ABCMR Record of Proceedings (cont)                                         AR20140018161



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