IN THE CASE OF: BOARD DATE: 22 October 2013 DOCKET NUMBER: AR20130002434 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 records to show he was medically retired. 2. The applicant states, in effect, he was unjustly discharged from the California Army National Guard (CAARNG). Prior to being discharged he provided medical documentation showing treatment of a medical condition, but he was not afforded a medical evaluation. He was not transferred to a component that would have allowed him the opportunity to receive the necessary points to qualify for a twenty-year retirement. Additionally, he was not allowed to sign his discharge document and he was not advised of his rights. 3. The applicant provides copies of: * a letter written to his Congressman from the CAARNG, dated 26 December 2012 * a letter of support from a fellow Soldier * four letters from his civilian doctor, dated between 1992 and 1993 * his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 9 May 1992 * his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 15 May 1993 * a Retirement Points History Statement, dated 3 August 1993 * private medical records, dated between 1989 and 1994 * Department of Veterans Affairs (VA) medical records for the treatment of ulcers, dated between 1988 and 1989 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 27 January 1954. His service commenced on 29 November 1972 with Regular Army service. He then served in the U.S. Army Reserve (USAR), U.S. Coast Guard, Louisiana ARNG, and the California ARNG. 3. On 22 September 1992, the applicant's private physician (at Kaiser Permanente) provided a statement indicating the applicant had been seen at the clinic since 1982 and he had been hospitalized for bleeding ulcers in 1989 and again in 1991. The applicant continued to require medication daily for peptic ulcer disease. This physician believed it was in the best interest of the applicant to receive a medical discharge because the activities and stress involved in his military career aggravate his medical problems. 4. The applicant's private (Kaiser Permanente) medical records show treatment for upper gastrointestinal (GI) hemorrhage and duodenal ulcers commencing in 1987. He was hospitalized for upper GI bleeding on 14 November 1989. The evaluation done at this time showed no active ulceration. 5. The applicant received treatment for blood in his stool and vomiting blood on several occasions between his 1989 and 1991 hospitalizations. 6. A 17 December 1991 consult note indicates that between 1972 and 1987 the applicant had been drinking alcohol excessively due to stressors related to his military service. He stopped drinking in 1987 and reports he was coping with the stressors. He was diagnosed with duodenal ulcers and declined elective surgery. 7. On 9 January 1993, the applicant was given a permanent P-4 profile for recurrent gastric ulceration and bleeding. 8. A request for a medical evaluation was initiated by his command on 5 November 1992 and again on 18 February 1993. These evaluations, if afforded him, are not available for review. 9. On 15 May 1993, the applicant was discharged from the CAARNG and the Reserve of the Army for being medically unfit for retention. He had completed 17 years, 10 months, and 1 day of creditable service for a non-regular retirement. He was unavailable to sign his NGB Form 22. 10. The medical records provided by the applicant do not include any service medical records. 11. The available Kaiser medical records show continued treatment for black stool, vomiting of blood, and general fatigue. On 26 September 1994, he was again hospitalized for his ulcers. 12. The VA medical records cover the years 1986 through 1988. They show basically the same complaints and treatment as the Kaiser records. 13. Public Law 103-337, dated 5 October 1994, established early reserve retirement eligibility for Soldiers involuntarily separated from the Selected Reserve due to physical disability during the period 5 October 1994 through 30 September 1999 (later extended through 31 December 2001). Eligibility is based on a minimum of 15 years of qualifying service toward Reserve Component retirement. Title 10, U. S. Code, section 12731a(a)(1) was amended to extend the Early Reserve Retirement Eligibility for Disabled Members to the period beginning on 23 October 1992. 14. Army Regulation 40-501 (Standards of Medical Fitness) provides the following: a. Each ARNG Soldier is individually responsible for the maintenance of their medical, physical, and mental fitness. This includes correcting remediable defects, avoiding harmful habits, and weight control. The maintenance of good strength and aerobic conditioning is of prime importance to the modern Soldier. b. ARNG Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 10 of this regulation. c. Chapter 10 provides that normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve or discharged from the USAR. They will be transferred to the Retired Reserve only if eligible and if they apply for it. d. Chapter 3 lists conditions that render a Soldier unfit for retention including duodenal or gastric ulcers with repeated hospitalization, or "sick in quarters" because of frequent recurrence of symptoms (pain, vomiting, or bleeding) in spite of good medical management and supported by endoscopic evidence of activity. 15. Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Under the laws governing the Army Physical Disability Evaluation System, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. DISCUSSION AND CONCLUSIONS: 1. While the applicant's available medical records do show he was suffering from a medical condition that impacted his health, he has provided insufficient evidence to show that his ulcers were incurred while on active duty or were aggravated by his military service. 2. The applicant's service medical records are not available for review and his civilian medical records show he declined intervention procedures for his ulcers. His administrative records also show medical evaluations were initiated by his command on 5 November 1992 and/or on 18 February 1993. These evaluations are not available for review. 3. In the absence of evidence to the contrary, and notwithstanding his unavailability to sign his NGB Form 22, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. 4. At the time of the applicant's separation the provisions of Title 10, U. S. Code, section 12731a(a)(1) for the Early Reserve Retirement Eligibility for Disabled Members had not yet been enacted. However, subsequent to his separation the law was amended to allow for retroactive eligibility to service members separated for a disability as of 3 October 1992. 5. While the applicant has presented insufficient evidence to warrant a granting of a regular disability retirement, he is shown to meet the eligibility criteria for an early Reserve retirement. Therefore, it is appropriate to correct his records to show he was placed in the Retired Reserve effective 16 May 1993 and issuing the appropriate Notification of Eligibility for Retired Pay at Age 60 letter. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____x___ ____x___ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army and state ARNG records of the individual concerned be corrected by: a. showing he was separated from the ARNG on 15 May 1993 by reason of being medically disqualified for retention in the Selected Reserve and placed in the Retired Reserve effective 16 May 1993; and b. issuing him the appropriate Notification of Eligibility for Retired Pay at Age 60 letter. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to show the applicant is entitled to a regular disability retirement. ____________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) AR20130002434 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130002434 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1