ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 March 2021DOCKET NUMBER: AR20200002111 APPLICANT REQUESTS: amendment of his service records to reflect 20 years of service for retired pay in lieu of 14 years, 9 months, and 8 days or, in effect, completion of the Medical Evaluation Board (MEB) process APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .self-authored statement .DD Form 214 (Certificate of Release or Discharge from Active Duty), covering he period ending 12 November 2009 .National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service), dated 19 December 2011 .DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 6 January 2012 .Oklahoma National Guard Joint Force Headquarters Orders 019-034, dated 19 January 2012 .email correspondence, dated April 2018 – June 2019 .self-authored letter to Member of Congress, dated 21 April 2019 .Oklahoma National Guard Joint Force Headquarters letter to Member ofCongress, dated 30 May 2019 .self-authored letter to Oklahoma National Guard, undated .The Adjutant General, Oklahoma National Guard memorandum to the ArmyBoard for Correction of Military Records (ABMCR), dated 1 July 2019 FACTS: 1.The applicant did not file within the 3- year time frame provided in Title 10, UnitedStates Code, section 1552(b); however, the ABCMR conducted a substantive review ofthis case and determined it is in the interest of justice to excuse the applicant's failure totimely file. 2.The applicant states: a.He respectfully requests that his military records be changed to reflect 20 years ofservice, instead of the documented 14 years, 9 months, and 6 days of service. Due to mistakes made at either the unit or battalion level, his extension was not properly submitted and processed. This is reflected in the memorandum from The Adjutant General of Oklahoma Army National Guard (OKARNG). This extension would have allowed him to either complete the MEB process, or perhaps allowed him to continue on in a limited basis with restrictions, allowing him to attempt to achieve his 20-year retirement date. b.During the year 2011, he was a member of C company, 700th Support Battalion(Rear) as a 92Y (Supply Sergeant) and at that time, he was awaiting a date for his MEB. Also during this timeframe, the sergeant (SGT) who was in charge of MEB packets was relieved of her duties, packets were lost, and a new SGT was brought in, causing him to have to start from scratch on his MEB packet. He was then 2 years into receiving care from the Department of Veterans Affairs (VA) for his service-connected disabilities rating at 80 percent, with a pending claim in process for an increase. c.Also concurrently, he was extending his enlistment by 6 months, while awaitingthe MEB and his extension was signed by himself and his commander on 6 January 2012. Once signed, he left and returned home. He had assumed that something as simple as an extension would have been processed correctly by the unit. He thenreceived his NGB 22 and discharge orders shortly after 19 January 2012, which was something he did not request or want. d.There are multiple reasons it took from 2012 to 2018 to start this process tocorrect the error. During this 6-year period, he was recovering from lower back surgery, having to resign from his civilian job, try to finish his terms in school, and what he believes to be the most important reason, was trying to get his mental health issues under control after multiple medicine changes. During this time, he also went back to work for his previous employer and suffered mentally, concluding with him resigning. Because of this, he initiated a claim with the VA to increase his rating. Another reason he did not file a protest at the very beginning was because of his anger toward the OKARNG. He has tried to take care of important issues only when calm. e.As previously stated, he did not wish to be discharged from the OKARNG at hisexpiration term of service (ETS) and he felt he was entitled to an MEB due to the injuries he sustained in Iraq. During a phone call with Command Sergeant Major (CSM) R____, First Sergeant (1SG) H____, and Mr. F____, he was told that there was email correspondence between individuals stating to not discharge him as he was awaiting an MEB. To an outsider, it would look like someone purposefully ignored this directive and proceeded to discharge him. This action, which he believes to have been deliberate, took away the possibility of a positive MEB result or a possible continuation in the OKARNG with some kind of a physical profile. An MEB would have possibly provided him a medical retirement and staying in the OKARNG to complete his 20 years would have also allowed him to retire. f.He requests that due to this injustice, and since he cannot come back in to gothrough an MEB and his VA status is in limbo, that his service time be adjusted to reflect 20 years of service, which would allow him to retire. Under either scenario, he would either have benefits now (in the case of medical retirement) or at age 65. He has benefits through the VA, but wishes for the 20-year retirement from the military as that was his ultimate goal. One does not stay in for as long as he did just to get out before 20 years of honorable service. He believes his attached supporting documents show his request is fair and just. 3.After over 4 years of prior honorable service in the Regular Army and prior service in both the Air National Guard and the ARNG the applicant again enlisted in the ARNG on 22 December 2006.4.As a member of the ARNG, he was ordered to active duty in support of Operation Iraqi Freedom on 19 August 2008 and service in Iraq from 2 November 2008 through8 August 2009. He was honorably released from active duty on 12 November 2009, due to completion of required active service and transferred back to his OKARNG unit.5.Documentation pertaining to the applicant’s physical profile, unfitting conditions, MEB status, or VA ratings is not in his available records for review and has not been provided by the applicant.6.His NGB Form 22 shows he was honorably discharged from the OKARNG effective 19 December 2011 due to ETS, after 4 years, 11 months, and 28 days of net service this period and 14 years, 9 months, and 8 days of total service for retired pay (3 months short of 15 years’ service).7.A DA Form 4836, signed by his immediate commander, Captain (CPT) F____ and the applicant on 6 January 2012, shows the applicant extended his service in the OKARNG by 3 months, moving his ETS date from 19 December 2011 to 19 March 2012.8.OKARNG Joint Force Headquarters Orders 019-034, dated 19 January 2012, honorably discharged the applicant due to ETS effective 19 December 2011.9.The applicant provided copies of email correspondence between himself and members of the OKARNG, to include CSM R___, dated between April 2018 and June 2019, wherein he seeks assistance in rectifying the error of his discharge at his ETS in lieu of honoring his service extension and allowing him to complete the MEB process for either medical retirement or retention in the service. The copies of the email correspondence have been provided in full to the Board for their review. 10.In an undated letter addressed to CSM R____, OKARNG, the applicant wrote, inpertinent part, the following: a.He was writing to CSM R____, after admittedly a long delay, but believed that enough time had passed to allow his anger to subside and for him to be able to speak rationally about his situation. At the time of his discharge from the OKARNG, he was awaiting a date for an MEB and was extending his OKARNG contract until such time. b. After his return from his second deployment, he was preparing to undergo back surgery for an injury he incurred while in Iraq. Also during that time, his unit was preparing to deploy and he was listed as non-deployable and MEB paperwork was supposedly initiated for him. However, the SGT responsible for the paperwork was relieved and another SGT was given the responsibility and his paperwork was lost. He was assured that the paperwork was refiled and he would be notified of his MEB date. c. During this time, he was drilling with a unit in Coweta, since it was difficult for him to drive that long distance to his unit of assignment, due to his recent back surgery. Nonetheless, he still drove to Norman to sign his extension paperwork on 6 January 2012 and it was signed by his company commander CPT F____ on the same day. The extension was then forwarded to the State Headquarters, at least he thought it was, but shortly thereafter he received his discharge paperwork in the mail, dated 19 January 2012, with an effective date of 19 December 2011. He knows his previous ETS ended on 19 December 2011, but he doesn’t remember anything being said about his further extension being invalid. d. He means no disrespect, but he did not request or expect to receive his discharge in this manner. He was fully expecting to go to drill that month and await work on an MEB date. Instead, he was blindsided by this discharge. Aa a career military member himself, he would understand the need to fully complete the required time to be able to retire with dignity from the military. Instead, he was stripped of the ability to retire, either medically or after 20 years due to length of service. He can honestly say that at the time he received his discharge in the mail, he was so furious that he almost considered legislative assistance in the matter; however, he knew it would be useless as he was just an ordinary Soldier, expendable since he was incapable of being deployed with any unit. e. The reasons it took him this long to write are complete anger, shame, and loss of hope. He was angry because he had been around long enough to know that during this time in the OKARNG, numbers were a driving force. If you were a non-deployable Soldier you were no good to any unit and expendable. He was embarrassed to point out to people who asked why he didn’t do his 20 years and retire that it was not his choice. Only later did he realize that it was the OKARNG that should be embarrassed and he had heard from other veterans during that time that it was common place for the ARNG to get rid of “dead weight.” Finally, he lost hope because he knew there was absolutely nothing he could do to correct this action, as he felt there was no recourse for a non-deployable Soldier. f.Fast forward to 2017. He is not rated as 80 percent disabled by the VA and hetried to inquire about the requirements for him to enlist in the ARNG again, just to be able to complete his time and enable him to retire. He was informed that since he has an 80 percent disability rating from the VA that would be impossible; however, if there were any way he could get back in and keep his rating he would desire to come back in at the last rank he held and repair weapons in an arms room without pay, just to accrue enough time to retire. He wouldn’t even ask for an MEB, he just wanted the time to retire with dignity on his own terms. 11.The applicant wrote a letter to his Member of Congress on 21 April 2019, statingthe following: a.While at his last unit of assignment in the OKARNG he was both recovering fromlower back surgery and under the assumption he was awaiting an MEB. After signing his extension in the OKARNG, he was discharged shortly thereafter. b.He has provided copies of his extension, his discharge, and a letter he sent to theOKARNG State CSM and email correspondence. During a phone conversation with outgoing State CSM R____, 1SG H____, and Mr. F____, he was informed about emails detailing a conversation stating for him to not be discharged. He does not have a copy of those emails. He believes someone in the OK Military Department disregarded these emails and proceeded to discharge him. The last email he received from Mr. F____ advised him he could not be brought back into the ARNG to either restart the MEB process or attempt to reach 15 years for a possible retirement at age 60. He was also advised to initiate an appeal with the ABCMR to have his records changed. He did not do this because of the length of time before reaching out to the ABCMR, they would probably deny his request. c.When he reached out to the OKARNG State CSM, he referenced his loss ofability to either undergo an MEB or be retained and retired with 20 years of service. He is currently 80 percent disabled through the VA and is in the process of having it possibly increased to 100 percent. He knows there is no way the OKARNG would let him back in; however, he feels that he could have his time adjusted to let him have the remaining time needed to retire with 20 years of service. He requests his office look into this matter and see if a resolution can be met. His possibility for retirement was taken away from him and he did not expect or request this. 12.An OKARNG Joint Force Headquarters, Deputy Director of Personnel, G-1 Officeletter to the applicant’s Member of Congress, dated 30 May 2019, states: a.This letter was in response to his inquiry concerning the applicant, who requestedassistance with his medical disposition and subsequent discharge. The applicant was honorably discharged from the OKARNG on 19 December 2011 at his ETS. He did, in fact, have a permanent medical profile requiring a medical review board for fitness for duty in the military service. Their division documented his progress, compliance, and even his initial appointment with Dr. H____ at Fort Sill, OK’s Reynolds Army Community Hospital for initial MEB evaluation. It appears, the applicant’s unit administrator failed to extend his enlistment contract before his ETS, which would have allowed him to complete his MEB process. They discovered a large extension of his enlistment dated 6 January 2012, which was submitted almost 3 weeks later with errors and returned without action. His extension should have been completed correctly, allowing the applicant due process before being discharged. b.Unfortunately, these errors were not rectified in 2011 and their only recourse is tosupport the applicant in his appeal to the ABCMR. While reviewing his case, they identified errors on his NGB Form 22 and have attached a corrected Report of Separation and Record of Service reflecting his updated total service and eligibility codes. They believe it reasonable to assume that the applicant would have most likely been found unfit for further military duty and would have received a medical discharge from the service. He would have also had sufficient time to attain 15 years or more of total service, which would have resulted in enhanced long-term benefits. 13.A memorandum from The Adjutant General, OKARNG to the ABCMR, dated 1 July2019, states: a.The applicant contacted the OKARNG on approximately 15 July 2018 concerninghis ETS on 19 December 2011 when he should have been allowed to finish his medical board. After review by the G-1 Office, they had documented his progress, compliance, and even his initial appointment with Dr. H____ at Fort Sill, OK’s Reynolds Army Community Hospital for initial MEB evaluation. It appears, the applicant’s unit administrator failed to extend his enlistment contract before his ETS, which would have allowed him to complete his MEB process. They discovered a large extension of his enlistment dated 6 January 2012, which was submitted almost 3 weeks later with errors and returned without action. His extension should have been completed correctly, allowing the applicant due process before being discharged. b.Unfortunately, these errors were not rectified in 2011 and their only recourse is tosupport the applicant in his appeal to the ABCMR. While reviewing his case, they identified errors on his NGB Form 22 and have attached a corrected Report of Separation and Record of Service reflecting his updated total service and eligibility codes. The Adjutant General believes it reasonable to assume that the applicant would have most likely been found unfit for further military duty and would have received a medical discharge from the service. He would have also had sufficient time to attain 15 years or more of total service, which would have resulted in enhanced long-term benefits. 14.The Army rates only conditions determined to be physically unfitting at the time ofdischarge, which disqualify the Soldier from further military service. The Army disabilityrating is to compensate the individual for the loss of a military career. The VA does nothave authority or responsibility for determining physical fitness for military service. TheVA may compensate the individual for loss of civilian employability. 15.Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensationfor disabilities which were incurred in or aggravated by active military service.However, an award of a VA rating does not establish an error or injustice on the part ofthe Army. 16.Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awardsdisability ratings to veterans for service-connected conditions, including those conditionsdetected after discharge. As a result, the VA, operating under different policies, mayaward a disability rating where the Army did not find the member to be unfit to performhis duties. Unlike the Army, the VA can evaluate a veteran throughout his or herlifetime, adjusting the percentage of disability based upon that agency's examinationsand findings. 17.Based on the applicant’s condition the Army Review Boards Agency medical staffprovided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1.The Army Review Board Agency (ARBA) Medical Advisor reviewed the supportingdocuments and the applicant's records in the Interactive Personnel Electronic RecordsManagement System (iPERMS), the Armed Forces Health Longitudinal TechnologyApplication (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and theVA's Joint Legacy Viewer (JLV). The applicant believes he should have either gonethrough a MEB or continued in service perhaps long enough to be eligible for retirementdue to time in service. He also has other administrative request(s). 2.Records showed that the applicant had indeed been referred for low back pain for afitness for duty evaluation by the MEB on 29Nov2010. He first reported back painwithout known injury in December 2005 at the Deployment Medical Clinic at Ft Sill. Hereported a 2-week history of back pain again while early in theatre in November 2008 without known injury. He had 2 visits for back pain and after 12Nov2008, he was not seen any more for his back symptoms and completed the deployment 9 months later in August 2009. He was released from active duty on 12Nov2009. Just prior to his release (04Nov2009) he was evaluated by back pain that radiated down both legs and left shoulder pain; and by mental health services. It is important to note, there were no in-service military records for the back condition after the Nov2008 theatre note. After release from active service, VA notes in JLV showed that he had 2 steroid injections (24Feb2010 and 08Apr2010) and he participated in 7 physical therapy visits from April through July 2010, prior to the back surgery in August 2010. 3.While a member of the OKARNG, he had L5-S1 fusion and left L5-S1 hemi-laminectomy on 18Aug2010 at Hillcrest Medical Center. A 01Dec2010 note from hisdoctor restricted him from military drills and maneuvers, and long distance driving. Hewas to follow up 27Dec2010. After the surgery, his pain improved. 4.During the 29Nov2010 MEB fitness for duty evaluation, the applicant was stillrecovering from surgery he had just 3 months prior. The MEB results were as follows: .Lumbago: Medically unacceptable per AR 40-501 3-39h. No radicular symptoms .Headache Syndrome: Needs to see neurology, to try prophylaxis and abortivetherapy, then if not improved will need MEB. Anticipate at least 3 months oftherapy per AR 40-501. Consult neurology. .Joint pain, localized in the knee: Medically acceptable. Needs L2 no-run profile. .Nicotine Dependence: Medically acceptable, but patient was advised to quit. .PTSD: Needs mental health fitness for duty evaluation. .Joint pain, localized in the shoulder: Medically acceptable, does not preventactivity. May need U2 no push-ups. 5.NCO Evaluation Report covering from 20091201 through 20101130 with principleduty title Unit Supply with duty MOS 92Y20 indicated he was on profile and thereforeunable to complete an APFT. Senior Rater comments on his overall potential were ‘fullycapable’ and ‘to maximize potential, assign to positions of increased responsibility’. 6.Prior to REFRAD, in October 2009, the applicant sought mental health services atthe VA in Muskogee, Oklahoma. He described problems with sleep, nightmares, andhypervigilance. He reported drinking to relax since his return from Iraq (3-4 beers daily).He was diagnosed with PTSD (DSM-IV). He began Cognitive BehavioralPsychotherapy sessions in January 2011. 7.Based on records available for review, evidence is insufficient to support that theapplicant had any conditions that failed medical retention standards at the time ofrelease from active duty in November 2009. At the time of discharge from the OKARNGin December 2011, it appears that the Lumbago condition failed medication retention standards in accordance with AR 40-501, chapter 3. Based on records available for review, evidence is insufficient to support that any other condition failed medical retention standards at that time. BOARD DISCUSSION: 1.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted. 2.The Board concurred with the medical advisory finding that there is insufficientevidence to support that the applicant had any conditions that failed medical retentionstandards at the time of release from active duty in November 2009. At the time of hisdischarge from the OKARNG in December 2011, it appears that the Lumbago conditionfailed medication retention standards in accordance with AR 40-501, Chapter 3. Basedon records available for review, evidence is insufficient to support that any othercondition failed medical retention standards at that time. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1.The evidence presented does not demonstrate the existence of a probable error orinjustice. 2. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of 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 military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 4. 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 percent. 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 of less than 30 percent. 5. Title 10 USC, section 12731b (Special rule for members with physical disabilities not incurred in the line of duty), enacted 23 October 1992, provides in pertinent part that in the case of a member of the Selected Reserve of a RC who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes as of 1 October 1991. This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC. //NOTHING FOLLOWS//