IN THE CASE OF:	  

		BOARD DATE:	  11 August 2015

		DOCKET NUMBER:  AR20150006139 


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 military records to show he was medically discharged on 9 October 2012 instead of being released from active duty (REFRAD) due to completion of required active service.

2.  The applicant states:

	a.  He was discharged from active duty for medical reasons while preparing for deployment with the Army National Guard (ARNG).

	b.  He was the only person in his unit in military occupational specialty (MOS) 25S (satellite communications systems operator/maintainer) who was REFRAD prior to deployment of his unit.  The actual reason for his non-deployment was for medical unsuitability due to disability, not operational downsizing as alleged.

	c.  He has medical documentation showing an Army medical authority determined he should not to deploy with his unit to Afghanistan due to medical reasons.  This denied him the ability to pursue his career and serve his tour of duty stated in his original orders.

	d.  He believes the reason for his discharge from active duty was based on a doctor's directive to his unit not to deploy him due to disabilities found.  He believes to circumvent processing paperwork for that decision was an incorrect reason of necessity due to operational downsizing was used as a basis for his discharge.  The reason for his discharge makes no sense as a basis of his REFRAD for operational downsizing because it would only constitute 2 percent of the effective strength of the unit and eliminated key MOS 25S personnel in leadership by 50 percent.

	e.  He contends he did not receive proper due process required by law under the 25-day rule before being discharged from active service.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* active duty orders, dated 5 May 2012
* implementation guidance on the 25-day rule for REFRAD of Soldiers with pre-existing medical conditions
* DA Form 2697 (Report of Medical Assessment)
* patient lab inquiry
* Standard Forms 600 (Chronological Record of Medical Care)
* three individual sick slips

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ARNG on 14 July 2006.  He was promoted to the rank of sergeant effective 21 June 2012.

2.  New York ARNG Orders 126-227, dated 5 May 2012, ordered him to active duty as a member of the ARNG in support of Operation Enduring Freedom.  He was ordered to report to his home station (Yonkers, NY) on 16 August 2012 and to report to his mobilization station on 19 August 2012.  The additional instructions state:

You are ordered to active duty for a period of less than 30 days for mobilization processing that includes medical & dental screening and/or care.

If upon reporting for duty you fail to meet deployment medical standards (whether because of a temporary or permanent medical condition), you may be released from active duty, returned to your prior Reserve status, and returned to your home address, subject to a subsequent order to active duty upon resolution of the disqualifying medical condition.

3.  He provided:

	a.  a Standard Form 600, dated 12 September 2012, which states he complained of shortness of breath due to a tight vest;

	b.  Standard Forms 600, dated 13 September 2012, which state:

* the applicant may not wear his vest for now, he will have to make arrangements with his unit for proper fitting
* if he cannot wear his vest, then he should be returned home and not deploy
* he was having difficulty wearing his vest during training

	c.  an individual sick slip, dated 13 September 2012, which states if he cannot wear his improved outer tactical vest (IOTV) due to discomfort, he should not deploy;

	d.  a Standard Form 600, dated 21 September 2012, which states he did not leave Fort Bliss and is being REFRAD due to mission change and his inability to tolerate wearing his IOTV; and

	e.  a DD Form 2697, dated 21 September 2012, which shows he was treated for left shoulder pain, difficulty breathing with protective vest, and right knee pain and weakness.  The health care provider commented:

* he was being REFRAD due to inability to tolerate wearing IOTV
* he was evaluated for shoulder and knee pain and did not require further evaluation at that time

4.  Headquarters, 1st Armored Division and Fort Bliss, Orders 275-0088, dated 1 October 2012, REFRAD him, not by reason of physical disability, and assigned him to his ARNG unit (Yonkers, NY) effective 9 October 2012.  The additional instructions state his REFRAD was for demobilization of forces from a contingency operation.

5.  On 9 October 2012, he was honorably REFRAD by reason of completion of required active service.

6.  In April 2014, he was notified of his non-selection for continued unit participation.  The memorandum stated:

	a.  The New York ARNG held an Enlisted Qualitative Retention Board to consider Soldiers with 20 years of creditable service towards retirement for continuation.

	b.  He was not selected for continued retention.

	c.  He would be separated from the ARNG on 10 October 2014 and transferred to the U.S. Army Reserve Retired Reserve according to the option he selected.

7.  He was discharged from the ARNG and assigned to the Retired Reserve effective 10 October 2014 due to selective or qualitative retention action.

8.  He provided Department of the Army Office of the Deputy Chief of Staff, G-1, Implementation Guidance – 25-Day Rule for REFRAD of Soldiers with Pre-Existing Medical Conditions.  This guidance states:

	a.  Determination of disqualifying pre-existing medical conditions must be identified within the first 25 days of mobilization (Army guidance).  The clock starts when the Soldier reports to home station.

	b.  Soldiers identified in the first 25 days as having a pre-existing medical condition that renders the individual non-deployable may be REFRAD immediately.

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states the mere presence of impairment does not, in itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, or rank.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in the service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates that a Soldier is fit.

10.  Title 10, U.S. Code, chapter 61, provides 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's contention that he did not receive proper due process required by law under the 25-day rule before being discharged from active service.  The implementation guidance for the 
25-day rule states Soldiers identified in the first 25 days as having a pre-existing medical condition that renders the individual non-deployable may be REFRAD immediately.  His medical condition (inability to tolerate wearing his IOTV) was identified in the first 25 days and rendered him non-deployable.  As a result, he was immediately REFRAD in accordance with the implementation guidance.

2.  He contends he should have been medically discharged rather than REFRAD on 9 October 2012.

3.  The evidence confirms:

	a.  He was ordered to active duty on 14 August 2012 for a period of less than 30 days for mobilization processing that included medical and dental screening and/or care.

	b.  Medical documentation, dated September 2012, shows he was REFRAD due to a mission change and his inability to tolerate wearing his IOTV.  Also, he was evaluated for shoulder and knee pain and did not require further evaluation at that time.

	c.  He was REFRAD on 9 October 2012.

	d.  In April 2014, he was not selected for continued retention by the New York ARNG Enlisted Qualitative Retention Board and notified he would be separated from the ARNG on 10 October 2014 and transferred to the Retired Reserve.

	e.  He was discharged from the ARNG and assigned to the Retired Reserve effective 10 October 2014 due to selective or qualitative retention action.

4.  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 on 9 October 2012.

5.  Since he continued to serve in the ARNG for an additional 2 years following his REFRAD in October 2012, there is insufficient evidence to show he was eligible for physical disability processing in 2012 and there is no basis for a medical discharge.



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)                                         AR20150006139



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150006139



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1