IN THE CASE OF:	   

		BOARD DATE:	  6 August 2015

		DOCKET NUMBER:  AR20140020040 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 February 2005 to show in block 18 (Remarks) the:

* Master Explosive Ordnance Disposal Badge vice Explosive Ordnance Disposal Badge
* entry – "Soldier is being discharged by reason of physical disability and is ineligible for reentry into the Armed Forces unless physical disability issue is resolved by competent medical authority"

2.  The applicant states upon his retirement (i.e. release from active duty), the clerk made a mistake by not including the entry above in block 18 of his DD Form 214 in accordance with the memorandum from the U.S. Army Human Resources Command (HRC).  He is appealing his medical separation and requesting medical retirement through a Physical Disability Board of Review and they require this statement on his DD Form 214.  The Master Explosive Ordnance Disposal Badge should be listed in its entirety in block 18 in order to ensure clarity.

3.  The applicant provides:

* his DD Form 214 for the period ending 14 February 2005
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 18 October 1968
* a Certificate of Retirement
* page 1 of a memorandum from HRC
* DA Form 199 (Physical Evaluation Board (PEB) Proceedings)
* medical evaluation board (MEB) narrative summary (NARSUM)
* a page titled Specialty Consult for MEB, dated 7 and 13 October 2004
* six pages of medical reports, dated between 21 July 2004 and 4 April 2011
* DA Form 3328 (Physical Profile)
* Order 058-001

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.  The applicant was born on XX August 1947.  Having had prior active service, he was serving as a member of the Georgia Army National Guard (GAARNG) in the rank/grade of sergeant first class (SFC)/E-7 and he was assigned to the 202nd Explosive Ordnance Disposal (EOD) Detachment, Kennesaw, GA.  He received his notification of eligibility for non-regular retired pay at age 60 on 30 7April 2002.

3.  He was ordered to active duty as a member of his ARNG unit in support of Operation Noble Eagle and he entered active duty on 16 December 2002.  He held military occupational specialty (MOS) 55D (EOD Specialist) and he was assigned to the 202nd EOD Detachment, Fort Bragg, NC.

4.  The applicant provides Order 058-001, dated 27 February 2001, issued by the GAARNG, awarding him the Master Explosive Ordnance Disposal Badge for the period 1 January 1992 through 1 January 2001.

5.  He provides a DA Form 3349, wherein is shows he was given a permanent profile on 30 August 2004 for diabetes, right knee degenerative joint disease (DJD), phrenic nerve injury, and bilateral hearing loss (moderate to severe in his right ear, severe to profound in his left ear).  His PULHES was 3-1-2-3-1-1.  The profile stated he should limit further exposure to noise as it was hazardous to his health.  No duty or assignment with exposure to noise greater than 85 decibels or weapon firing (not to include annual weapon qualification with proper ear protection).  Annual hearing test required.  Service Member scored 88 percent with 34 years in service on "SPRINT" test yielding the recommendation of "retain in current assignment/MOS."

6.  He provides an MEB NARSUM, dated 13 and 15 October 2004, wherein the MEB physician stated:

	a.  The applicant was a 57-year old male with hearing loss, elevated left hemidiaphragm, and diabetes.  His chief complaint was bad knees, phrenic nerve, hearing loss, and diabetes.  In terms of the elevated left hemidiaphragm which was initially thought to be a phrenic nerve injury, the patient was having a chest x-ray prior to the repair of a left inguinal hernia in June 2003.  He showed an elevated left hemidiaphragm and no etiology was identified.  He had noted shortness of breath with any exertion that eventually resolved with rest.  The applicant stated the symptoms were noted when he came on active duty and he was pushed to run daily.  He has no history of asthma and his only history of trauma was landing in a tree and hitting his chest in the mid-1980s and he fell running during physical training (PT) at Fort Bragg in February 2003.

	b.  In conjunction with the MEB, he was evaluated by Pulmonary Medicine who noted no shortness of breath at rest, nor at nighttime.  He was able to lie flat and lie on his side without difficulty.  He had no chest pain and no history of cardiothoracic surgery of any nature.  He was unable to wear a Nuclear, Biological, Chemical (NBC) mask due to his shortness of breath.  His lungs were clear and his pulmonary function testing revealed results read as moderate restrictive lung disease.  His chest scan revealed no mediastinal adenopathy or abdominal adenopathy and an elevated left hemidiaphragm; it was not paralyzed. It appears there were abdominal contents, namely bowel and stomach that were tucked up underneath his left hemidiaphragm.  There was no abnormal pathology to explain it.  His restrictive pulmonary function testing was probably a result of his left hemidiaphragm being elevated.  He would have some limitations at high levels of exertion but was able to do some PT.  His problem was not disqualifying according to Army Regulation 40-501 (Standards of Medical Fitness).

	c.  He also related having bilateral knee pain, right much worse than the left.  He stated he had a permanent profile for his right knee.  He stated he was unable to pinpoint any specific trauma but it was getting progressively worse.  He recalled having knee pain for about 2 years.  However, the orthopedist reviewed his records and there were notes of pain in the right knee going back from more than 2 years and there was a note sent by a physician and a chiropractor prior to his being activated stating his knee had quite serve damage and he should not be doing any vigorous activities.  On the physical examination, they noted he walked with a normal gait, had full range of motion of both knees, and had moderate crepitation in both knees.  McMurray testing was negative bilaterally.

7.  It appears an MEB was subsequently conducted and found the applicant had a moderate to severe hearing loss bilaterally which existed prior to his activation on active duty (EPTS) that was unfitting and prevented him from performing the duties required of his rank and MOS.  

8.  The applicant provides a DA Form 199, dated 22 November 2002, wherein it shows a PEB convened on that date and confirmed his condition of moderate to severe hearing loss, bilaterally.  The PEB reviewed the medical evidence and concluded there was sufficient evidence to substantiate an EPTS condition for which he was now unfit.  His condition had not been permanently aggravated by his service but was the result of natural progression.  He was not assigned a disability percentage as the condition was EPTS and his separation was recommended without disability benefits.  This form shows on 24 November 2004, after being counseled as to the findings and recommendation of the PEB and of his rights, the applicant checked the block on this form to show he did not concur with the PEB and requested a formal hearing.  

9.  It is unknown if a formal hearing was subsequently conducted.  A review of his available official military personnel file on the interactive Personnel Electronic Records Management System did not show any MEB or PEB documents.  However, the applicant subsequently requested release from active duty.  He provides page one of a memorandum to his GAARNG commander, dated 26 January 2005, from HRC, subject:  Early release from active duty (REFRAD) - without disability benefits - [The Applicant], wherein it stated, in part:

	a.  [The Applicant's] request for REFRAD in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, has been reviewed and approved.

	b.  REFRAD orders will be published by the Fort Bragg Transition Center with an effective release date of no later than 26 February 2005.  The narrative reason for separation will be completion of required active service, the separation program designator (SPD) code will be LBK, and the character of service will be honorable.  The U.S. Army Physical Disability Agency (USAPDA) will not transmit any separate [documents] in the Transition Point Processing System (TRANSPOC) for this Soldier. 

	c.  Since the applicant has accumulated 20 plus years of qualifying service for retirement, he will not be discharged and will be transferred to the U.S. Army Reserve (USAR) Control Group (Retired).

	d.  Block 18 of the Soldier's DD Form 214 will be annotated as follows, "Soldier is being discharged by reason of physical disability and is ineligible for re-entry into the Armed Forces unless physical disability issue is resolved by competent medical authority."

10.  He was honorably released from active duty on 14 February 2005 in the rank of SFC and he was transferred to the 202nd EOD Detachment, Kennesaw, GA.  The DD Form 214 he was issued for this period of service shows in:

	a.  Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) in part, the entry "//Master//Continued (Cont)" in Block 18.  Block 18, in part, contains the entry "//Cont from block 13//Explosive Ordnance Disposal Badge//."  

	b.  Block 18 does not contain the remark that the Soldier is being separated by reason of physical disability and is ineligible for re-entry into the Armed Forces unless physical disability issue is resolved by competent medical authority.

11.  The applicant was honorably released from the GAARNG on 15 February 2005 in the rank of SFC and he was transferred to the USAR Control Group (Retired Reserve).  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he was issued shows he had almost 33 years of service for pay purposes and almost 27 years of qualifying service for retired pay.  
12.  He provides a certificate, dated 19 August 2007, showing he was transferred to the Retired List on that date.
13.  Army Regulation 635-40, chapter 4, states, in part, a PEB may decide that a Soldier's physical defect EPTS, or inactive duty for training, or resulted from a non-service connected condition.  Soldiers who are unfit by reason of physical disability neither incurred nor aggravated during any period of service while entitled to basic pay, or as the proximate result of performing active duty, but which effects duty performance, will be separated for physical disability without entitlement to benefits.  Reserve component Soldiers may request transfer to the Retired Reserve if eligible.  
14.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states in block 13 of the DD Form 214 list all federally recognized awards and decorations for all periods of service.  In block 18, enter mandatory requirements when a separate block is not available or as a continuation for entries in blocks 9, 11, 13, and 14.   
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant went before a PEB that determined he was medically unfit for further service due to a condition that EPTS.  He was released from active duty on 14 February 2005 to the control of his ARNG unit.  He provides a memorandum from HRC that stated block 18 of the DD Form 214 he would be issued for this period of service would contain the remark, "Soldier is being discharged by reason of physical disability and is ineligible for re-entry into the Armed Forces unless physical disability issue is resolved by competent medical authority."  However, this remark is not reflected on his DD Form 214.  Therefore, it would be appropriate at this time to correct his DD Form 214 by adding this remark to block 18.

2.  The evidence of record confirms he was awarded the Master Explosive Ordnance Badge.  In accordance with regulatory guidance, when this badge was entered in block 13 of his DD Form 214 the full title of the badge did not fit and part of the title was continued in block 18 of the form.  However, in the interest of clarity, there is no harm to the Army or the Soldier if his DD Form 214 is corrected to show the full title of this badge on the same line.  Therefore, it would be appropriate to correct his DD Form 214 accordingly.

BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 14 February 2005 by:

* deleting from block 13 the entry - Master
* deleting from block 18 the entry - Explosive Ordnance Disposal Badge
* adding to block 18 the entries Master Explosive Ordnance Disposal Badge and the statement, "Soldier is being discharged by reason of physical disability and is ineligible for re-entry into the Army Forces unless physical disability issue is resolved by a competent medical authority."



      _______ _   __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)                                         AR20140020040





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ABCMR Record of Proceedings (cont)                                         AR20140020040



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