BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150002314 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ___x_____ __x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150002314 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. BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150002314 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 military records to show he met the requirements for a non-regular retirement. 2. The applicant states he served in the Army National Guard (ARNG) for 18 years while assigned to the 878th Engineer Battalion. He deployed to the Persian Gulf in April 1992 and later he deployed to Jordan, unaware that he was suffering from post-traumatic stress disorder (PTSD). His symptoms included depression, anger, not caring, wanting to kill, suicidal thoughts, and abuse of drugs and alcohol. He contends that after testing positive for drugs he was told he would be discharged. He was instructed to turn in all his of equipment and not come back. He never received discharge orders at the time but did find them 15 years later in his personnel file. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 20 April 1992 * Automated National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 17 February 1996 * Certificate of Participation and Certificate of Completion, Carl Vinson Veterans Affairs (VA) Medical Center * Orders 040-63, dated 13 March 1996 * VA Compensation Memorandum, dated 14 July 2011 * VA Consult Requests Form, printed 31 July 2012 * Service-Connected Questionnaire and Mental Capacity Assessment, dated 17 September 2010 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. He enlisted in the Georgia ARNG (GAARNG) on 18 February 1975. 3. His DA Form 2-1 (Personnel Qualification Record) shows he was assigned to the 878th Engineer Battalion for the majority of his career. He completed service in Southwest Asia from 9 July 1991 through 3 April 1992. 4. On 13 July 1993, the Adjutant General for the GAARNG, notified the applicant’s commander that the applicant’s Administrative Separation Board would take place on 7 August 1993. This notification contains a handwritten entry stating, “Board scheduled 3 separate times. Solder No Show each time. All follow-up requests receive reply of 'at NGB-No Word.' Original discharge packet unavailable” (emphasis in original). 5. He was honorably discharged from the ARNG, effective 17 February 1996. He held the rank of sergeant first class at the time of his discharge. 6. His ARNG Current Annual Statement, prepared on 14 September 2015, covering the period 18 February 1975 to 21 April 1996, shows: a. he completed 17 years, 2 months, and 4 days of creditable service for retired pay; and b. all his service was in the Regular Army with the exception of the period 22 April 1992 to 21 April 1996, which was in the U.S. Army Reserve (USAR). 7. His medical records are not available for review. The available records do not show he had a medical condition, to include PTSD, warranting appearance before either a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB). 8. He provides: * his Automated NGB Form 22 showing completion of 21 years of net service * post-service Certificates of Participation and Completion in Substance Abuse Treatment programs * VA Rating decision showing a disability rating of 70 percent for PTSD, effective 29 April 2010 * VA treatment records for his PTSD on 9 July 2004 * PTSD Assessment and Questionnaire, dated 17 September 2010 9. On 2 May 2016, the Army Review Boards Agency Clinical Psychologist reviewed the applicant’s available records and determined there was insufficient information to reasonably conclude the applicant met the diagnostic threshold for PTSD or other boardable conditions during his time in service. However, this did not preclude that he may have developed PTSD following military service. 10. On 16 May 2016, he noted his disagreement with the advisory opinion and he requested the Board continue to investigate his case and stated he had scheduled an appointment with his psychiatrist. REFERENCES: 1. Army Regulation 135-180 (ARNG and Army Reserve – Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component (RC) Soldiers. Paragraph 2-8 describes qualifying service as service performed in an active status in a RC or in active Federal service. After 30 June 1949, a Reserve Soldier must earn a minimum of 50 retirement points each retirement year to receive credit for a qualifying year. 2. 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. 3. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 4. Army Regulation 635-40 further provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him or her during future duty assignments. 5. 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 regulation provides that 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: 1. The applicant requests, in effect, correction of his military records to show he met the requirements for a non-regular retirement. 2. The applicant contends that his PTSD went undiagnosed after returning from deployment and he was unaware that he was suffering with the symptoms of PTSD when he began to self-medicate with drugs and alcohol. His drug usage ultimately resulted in his discharge. 3. He completed over 17 years of creditable service for retirement at the time of his honorable discharge; however, the complete facts and circumstances of his discharge are not available. His post-service PTSD diagnosis is not in question, unfortunately, without medical documentation to determine the approximate date of the onset of his condition, it is impossible to link his medical condition to his misconduct or to confirm the degree to which it may have affected his ability to perform his duties. Further, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. 4. It is acknowledged that medical conditions may worsen over time and the VA has the responsibility and jurisdiction to recognize any changes in conditions over time by awarding a disability rating; however, VA's rating does not entitle an individual to a medical retirement. 5. It must also be presumed that his discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of his rights. 6. As an administrative note, his Chronological Statement of Retirement Points reflects he completed service in the Regular Army and USAR. The evidence indicates these entries are errors. The applicant may contact the U.S. Army Human Resources Command to resolve this issue if he so desires. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150002314 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150002314 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2