IN THE CASE OF:  	  

		BOARD DATE:  23 July 2015	  

		DOCKET NUMBER:  AR20150006905 


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, correction of his DD Form 214 (Certificate of Release or Discharge) and his NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) to reflect his character of service as honorable in lieu of uncharacterized.

2.  The applicant states:

* he has service-connected post-traumatic stress disorder (PTSD), a traumatic brain injury (TBI) with headache, chronic back injuries, left and right shoulder pain, loss of hearing, tinnitus, a scar with pain, sleep apnea, depression, anxiety, knee injuries, and breathing problems
* he was found totally disabled by the Department of Veterans Affairs (VA) and the Social Security Administration
* he was in an accident in a government vehicle at Fort Sill, OK, on 28 May 2008 that was covered up
* he was unconscious for 45 minutes after the accident and spent 1 1/2 weeks in quarters for his injuries
* he was taken to an on-post hospital and he has a copy of the emergency room discharge paperwork
* a line of duty (LOD) investigation was never done after the accident until he got the Office of the Judge Advocate General involved, then an LOD investigation was conducted for another incident that happened prior to these injuries



3.  The applicant provides:

* emergency care and treatment record, Reynolds Army Community Hospital, Fort Sill, OK, dated 28 May 2008
* DD Form 214
* NGB Form 22
* New York Army National Guard Orders 239-1015, dated 26 August 2008
* NGB Form 23B (Army National Guard Retirement Points History Statement)
* VA Rating Decision, dated 26 March 2015
* letter from VA clinical psychologist, dated 28 May 2015
* VA Form 21-0781a (Statement in Support of Claim for Service Connection for PTSD Secondary to a Personal Assault), dated 17 May 2012
* progress notes from VA medical records
* VA summary of benefits, dated 17 September 2014
* correspondence from the Army Review Boards Agency Case Management Division, dated 11 May 2015 and10 June 2015
* Headquarters, New York Army National Guard, Directorate of Military Personnel, memorandum for record, dated 15 June 2015, subject:  Discharge Order Correction for (Applicant)
* numerous additional VA medical records

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 enlisted in the Army National Guard on 16 March 2007.

3.  On 30 April 2008, he entered active duty for training to attend basic combat training.  He was assigned to the 434th Field Artillery Brigade, a brigade that conducts basic combat training at Fort Sill, OK.

4.  An emergency care and treatment record shows the applicant was treated at Reynolds Army Community Hospital, Fort Sill, OK, on 28 May 2008.  The document is partially illegible, but it shows the applicant was transported to the hospital in a privately-owned vehicle and that he sustained injury when sitting in the back of a truck that hit a trench, causing him to bounce to the ceiling, hitting his head, face, and back.  The document indicates multiple traumas were noted; he was wearing a helmet and had no head pain, his mouth was clear, his cervical spine was normal, and his right thumb was fused 4 years ago and was reinjured 3 weeks ago.  Further record of his injuries and treatment thereof are not in the available records for review.

5.  His records contain a DA Form 4187 (Personnel Action), dated 6 June 2008, attaching him from the 434th Field Artillery Brigade to Charlie, Battery, 95th Adjutant General Battalion, for all administrative purposes.  The 95th Adjutant General Battalion conducts reception operations, English as a second language training, physical fitness retraining, physical training and rehabilitation program, and facilitates medical quarters and separation processing for the 434th Field Artillery Brigade.  The DA Form 4187 contains the remark "existed prior to service," indicating the applicant was attached to the battalion for separation processing relative to a medical condition that existed prior to service.

6.  On 13 June 2008, he was released from active duty under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-11, for failure to meet procurement medical fitness standards.  He was credited with 1 month and 14 days of net active service and his service was uncharacterized.  Further documentation pertaining to his release from active duty is not available.

7.  On 14 June 2008, he was separated from the New York Army National Guard under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management) and credited with 1 year of service in the Army National Guard.  His service was uncharacterized.

8.  His records contain a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 20 November 2008 showing he injured his back on 11 May 2008 while participating in unit physical training during in basic combat training at Fort Sill, OK.  On 16 May 2008, he was treated as an out-patient at Reynolds Army Community Hospital for the injury.  The injury was considered to have been incurred in the LOD but a formal LOD investigation was not required.  The remarks section of the form noted he also had a metacarpal phalangeal joint injury to his right thumb that existed prior to service.

9.  The applicant applied to the Army Discharge Review Board requesting a change to the characterization of his service.  On 5 November 2014, the ADRB denied his request, determining he had been properly and equitably discharged.

10.  A VA Rating Decision, dated 26 March 2015, shows he received a combined rating of 90 percent from the VA for the following service-connected disabilities:

* tinnitus
* headaches
* TBI
* PTSD

11.  A letter from a clinical psychologist at the James J. Peters VA Medical Center dated 28 May 2015, confirms the applicant's diagnosis of and treatment for PTSD.

12.  A Headquarters, New York Army National Guard, memorandum for record, dated 15 June 2015, subject:  Discharge Order Correction for (Applicant), shows he appealed to the New York Army National Guard to change the characterization of his discharge as directed by the Army Review Boards Agency.  The New York Army National Guard deemed the uncharacterized discharge to be correct based on National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-10.

13.  National Guard Regulation 600-200 prescribes criteria, policies, processes, procedures, and responsibilities to classify, assign, utilize, transfer, separate and appoint Army National Guard and Army National Guard of the United States enlisted Soldiers.

	a  Paragraph 6-10 states service will be described as uncharacterized if separation processing is initiated while a Soldier is in an entry-level status.

	b.  The Glossary, Section II, Terms, states entry-level status for a member of a Reserve Component who is not on active duty or who is serving under a call or order to active duty for 180 days or less begins entry-level status upon enlistment in a Reserve Component.  Entry-level status for such a member of a Reserve Component terminates 180 days after beginning training if the Soldier is ordered to active duty for training for one continuous period of 180 days or more or 90 days after the beginning of the second period of active duty for training if the Soldier is ordered to active duty for training under a program that splits the training into two or more separate periods of active duty.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 5-1 states unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in an entry-level status.

	b.  Paragraph 5-11 states Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty or active duty for training for initial entry training may be separated.  Such conditions must be discovered during the first 6 months of active duty.  For character of service, paragraph 5-1 should be adhered to.

	c.  The Glossary, Section II, Terms, states entry-level status for Army National Guard of the United States and U.S. Army Reserve Soldiers begins upon enlistment in the Army National Guard or U.S. Army Reserve.  For Soldiers ordered to initial active duty for training for one continuous period, it terminates 180 days after beginning training.  For Soldiers ordered to initial active duty for training for the split or alternate training option, it terminates 90 days after beginning phase II of advanced individual training.

15.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The VA does not have the authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  These two government agencies operate under different policies.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 and his NGB Form 22 to reflect his character of service was honorable in lieu of uncharacterized was carefully considered.

2.  The complete facts and circumstances surrounding his discharge are not in the available record for review, yet there is a presumption of administrative regularity on the part of the Army.  All available evidence, including the emergency care and treatment record from 28 May 2008 at Reynolds Army Community Hospital and the LOD investigation, documents he injured his back and also had an injury to his thumb that existed prior to service.  It is presumed that this preexisting injury to his thumb is the injury which failed to meet procurement medical fitness standards as it is twice referred to in independent Army medical documents as existing prior to service.

3.  He was separated for failure to meet procurement medical fitness standards as outlined in paragraph 5-11 of Army Regulation 635-200.  Both his DD Form 214 and his NGB Form 22 show this authority.  As the applicant met the definition of entry-level service at the time of his discharge and regulatory guidance calls for the uncharacterized service of Soldiers in an entry-level status separated under the provisions of paragraph 5-11, it is appropriate that his service was uncharacterized.

4.  Although the applicant received a VA service-connected disability rating of 90 percent, the Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency does not establish an error by the Army.  Operating under different laws and policies, the VA does not have the authority or the responsibility to determine medical unfitness for military service.  The VA May award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.



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)                                         AR20150006905



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ABCMR Record of Proceedings (cont)                                         AR20150006905



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