IN THE CASE OF: BOARD DATE: 22 September 2011 DOCKET NUMBER: AR20110003217 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 reconsideration of his previous request for correction of his record to show he was determined to be unfit by the physical disability evaluation system (PDES) and retired by reason of physical disability. He further requests to appear before the Board to state his case in person. 2. In his previous request, the applicant stated that he incurred a hernia while on active duty which the Department of Veterans Affairs (VA) has determined to be service-connected. He adds he was administratively discharged by the Army National Guard (ARNG) as physically unfit due to a hernia and subsequent surgical repairs. He believes it would be proper to retire him vice discharge him. 3. The applicant now contends that he was denied a discharge status change by the Army Board for Correction of Military Records (ABCMR) because he waived a Physical Evaluation Board (PEB) during his discharge proceedings. He admits this is factually true, but contends it does not meet the standard for due process because he was not properly counseled on the impact of waiving a non-duty related PEB. He further contends he was not assigned a discharge liaison or given any meaningful separation counseling or information regarding the recourse of his discharge. He attests he was repeatedly and specifically told by his chain of command that he was receiving an "honorable medical discharge" from both the Army and the Virginia ARNG (VAARNG) for service-connected injuries. To this end, his commander had him draft and sign a memorandum for record stating that all of his injuries for which he was being discharged were incurred in the performance of his military duties. 4. The applicant provides a self-authored letter. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100026344, on 30 November 2010. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. The applicant’s request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision in this case. Therefore, this portion of the applicant's request will not be discussed further in these Proceedings. 4. The applicant acknowledges that he waived consideration by a PEB during his discharge proceedings. However, he provides new argument that he was denied due process because he was not properly counseled on the impact of waiving a PEB, assigned a discharge liaison, or given any meaningful separation counseling or information regarding the recourse with regard to his discharge. This argument was not previously considered by the ABCMR; therefore, it warrants consideration by this Board. 5. His record shows he enlisted in the VAARNG on 25 February 2000 for a period of 8 years. On 15 November 2005, he was honorably discharged from the VAARNG and as a Reserve of the Army by reason of being medically unfit for retention. 6. His DA Form 2-1 (Personnel Qualification Record - Part II) shows, in Section VII (Current and Previous Assignments) the following periods of active duty service: * 31 August 2000 to 4 May 2001 - Active Duty for Training (ADT) in military occupational specialty (MOS) 67T (UH-60 Helicopter Repairer) * 30 August 2001 to 29 April 2002 - Ordered to active duty service in Bosnia * 10 August 2002 to 15 May 2003 - Ordered to active duty at Fort Bragg, NC in support of Operation Iraqi Freedom (OIF) 7. Upon the applicant's release from active duty on 15 May 2003, there was no indication of a medical problem. However, on 18 June 2003, the applicant underwent surgical repair of a small, 5mm defect, umbilical hernia. The surgery took place at the DeWitt Army Community Hospital, Fort Belvoir, VA. He was not on active duty at the time. 8. The applicant was selected to attend Warrant Officer Candidate School (WOCS) at Fort Rucker, AL. On 9 April 2004, while performing the sit-up portion of a diagnostic Army Physical Fitness Test (APFT), he felt a sharp pain near the site of his surgically repaired umbilical hernia. His enrollment in WOCS was terminated, he was placed on a temporary physical profile, and he was returned to his VAARNG unit. 9. He underwent a second surgical repair of his umbilical hernia in July 2005. In September 2005, he was reevaluated for a reoccurring hernia. 10. The applicant's discharge packet contains the following pertinent information: a. On 6 September 2005, the applicant's unit commander notified him by memorandum that he was being recommended for discharge under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26j(1), as medically unfit for retention; however, separation action would be suspended for 45 days in order for the applicant to submit documentation supporting retention. The applicant rendered a handwritten statement on the notification memorandum indicating he had been counseled in person regarding his separation and authenticated it with his signature. His first sergeant followed with a handwritten statement on the same memorandum indicating he had counseled the applicant regarding his separation packet. b. On 12 September 2005, the Deputy Chief of Staff, Personnel (DCSPER), Office of the Adjutant General of Virginia informed the applicant that after reviewing all pertinent records, the Virginia State Medical Examiner recommended his discharge from the VAARNG. The DCSPER also advised the applicant of his right to request a non-duty related PEB solely for the purpose of fitness determination and afforded him a 30-day window in which to submit any additional information that he felt may be in his best interest. c. On 14 September 2005, the applicant's unit commander informed him by memorandum that action was being initiated to separate him from the VAARNG under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations) because he did not meet medical standards. The commander also informed the applicant he was recommending that he receive an honorable characterization of service. The commander also advised the applicant that he was suspending separation action for 45 days to give him an opportunity to submit any documentation in his own behalf and to exercise the following rights: (1) The right to consult with an appointed counsel for consultation; or military counsel of his choice, if he or she is reasonably available; or civilian counsel at his own expense. (2) The right to obtain copies of documents that would be sent to the separation authority supporting the basis for the proposed separation. (3) The right to request a hearing before an administrative board (either with or without military counsel at no expense, or with civilian counsel at his own expense) if he had 6 or more years of total active service and/or reserve service on the date of this notification. (4) The right to present statements in his own behalf instead of the administrative board proceedings. (5) The right to waive the rights listed above in writing; and the right to withdraw any such waiver at any time up until the date the separation authority orders, directs, or approved his separation. d. On 14 September 2005, the applicant rendered a handwritten statement on the same memorandum indicating he had been counseled in person regarding his separation and authenticated it with his signature. His first sergeant rendered a handwritten statement on the same memorandum indicating he had counseled the applicant regarding his separation packet. e. On 14 September 2005, having been advised by his commander of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of those rights, he responded by memorandum that he: (1) acknowledged receipt of the notification of separation proceedings (2) indicated his understanding that he had the right to consult with an appointed counsel for consultation or military counsel of his choice if reasonably available, or civilian counsel at his own expense. (3) waived his right to consult with an appointed counsel for consultation or military counsel of his own choice, or civilian counsel at his own expense. (4) requested copies of the documents that would be sent to the separation authority requesting the basis for his proposed separation. (5) elected to provide a statement in his own behalf. (6) indicated his understanding that he had the right, up until the date the separation authority ordered, directed, or approved his separation, to withdraw any waiver of rights that he may have submitted. (7) indicated his understanding that if he was ordered to undergo a medical or mental status evaluation and refuse to comply with the order, or willfully failed to undergo such examination or evaluation, separation action would be taken without an examination or evaluation. (8) indicated his understanding that there is no automatic upgrading or review by any Government agency of any characterization of service that is less than honorable; and that after discharge he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for consideration. (9) rendered a handwritten statement indicating he had been counseled in person regarding his separation and authenticated it with his signature. f. On 30 September 2005, the applicant submitted a written request to waive the 45-day suspension of separation action. He also submitted a written statement indicating: (1) he understood that he was being medically separated from the VAARNG for a recurrent umbilical hernia. (2) all three injuries and subsequent surgical procedures were incurred while on active duty or drill status, and that military surgeons performed all three operations. (3) he did not wish to contest his discharge as he believed his medical condition would prevent him from performing his military duties. 11. On 15 November 2005, he was discharged accordingly. The NGB Form 22 (National Guard Bureau - Report of Separation and Record of Service) he was issued at the time shows he was honorably discharged under the provisions of National Guard Regulation 600-200, paragraph 8-26j(1) due to being medically unfit for retention. 12. His record is void of any evidence and he has not provided any evidence showing he was informed that he was receiving a medical discharge due to disability. 13. In his previous application, the applicant submitted a 30 January 2008 VA Rating Decision. The VA utilized the applicant's service medical records in arriving at its rating decision. The VA granted service-connection effective from 31 August 2007 for "status post-umbilical hernia repair with scars" [emphasis added] for a pre-existing condition which was aggravated by military service. After thoroughly reviewing the applicant's service medical records, the VA stated, "There is no evidence to indicate that this condition occurred while you were on active duty." The applicant was granted a 10 percent (%) disability rating percentage by the VA. 14. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provides for Medical Evaluation Boards (MEBs), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. 15. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities (VASRD). 16. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 17. 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 in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. 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. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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. 18. Department of Defense Directive (DODD) 1332.18 (Separation or Retirement for Physical Disability) provides, in paragraph 3.5, "[A]ny member of the Ready Reserve who is pending separation for a non-duty related impairment or condition shall be afforded the opportunity to enter the PDES for a determination of fitness. If determined fit, the Secretary concerned may deem the member medically qualified for retention in the Ready Reserve in the specialty for which he or she was found fit. DISCUSSION AND CONCLUSIONS: 1. The applicant contends: * his chain of command repeatedly told him that he was receiving an "honorable medical discharge" for service-connected injuries * he was denied due process because he was not properly counseled on the impact of waiving a PEB * he was not assigned a discharge liaison or given any meaningful separation counseling or information regarding his discharge. 2. During his active duty service, there was no indication of any medical issue; however, on 18 June 2003, the applicant underwent surgical repair of a small (5mm defect) umbilical hernia. The applicant later suffered a service-connected aggravation of this condition and underwent two additional repairs. He was given temporary profiles and underwent medical evaluation by the VAARNG to determine fitness for retention. 3. After reviewing all pertinent records, the Virginia State Medical Examiner found him unfit for retention and recommended his discharge from the VAARNG. The applicant was advised of his right to request a non-duty related PEB and afforded a 30-day window in which to submit any additional information that he felt may be in his best interest. 4. His record is void of any evidence and he has not provided any evidence showing he was informed that he was receiving a medical discharge due to disability. 5. When the applicant's unit commander informed him that separation action had been initiated on him for failing to meet medical standards for retention he also informed the applicant of his rights to suspend separation action for a period of 45 days to give him an opportunity to consult with counsel and submit any documentation on his behalf. 6. Evidence clearly shows the applicant was counseled by his chain of command and his first sergeant was personally involved in each step of his separation processing. He was also afforded an opportunity to consult with legal counsel. Evidence also shows that on at least five occasions the applicant rendered statements indicating he had been counseled in person regarding his separation and authenticated them with his signature. 7. The applicant rendered a typewritten request wherein he stated he did not wish to contest his discharge and waived his right to consult with counsel, waived his right to request a non-duty related PEB, and waived the 45-day suspension of his separation action. By doing so, he precluded his entry into the PDES and any related processes. 8. In view of the foregoing, each of his contentions is unfounded and he is not entitled to the requested relief. 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 to amend the decision of the ABCMR set forth in Docket Number AR20100026344, dated 30 November 2010. ____________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) AR20110003217 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110003217 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1