IN THE CASE OF: BOARD DATE: 28 January 2021 DOCKET NUMBER: AR20200002587 APPLICANT REQUESTS: through Counsel: * amendment of item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect physical disability retirement in lieu of completion of required active service * awarding of a physical disability rating of 80 percent for six unfitting conditions or referral to a Medical Evaluation Board (MEB) for disability determination * amendment of his Army National Guard (ARNG) service records to reflect an additional 50 days of service via the application of constructive credit * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s brief * Power of Attorney * applicant’s self-authored statement * DD Form 214 and certified copy of DD Form 214 * Department of Veteran’s Affairs (VA) Rating Decision, dated 2 August 2013 * Post-9/11 Educational Benefits Transferability Commitment and Statement of Understanding, dated 10 August 2013 * VA letter, dated 8 January 2014 * VA letter, dated 4 May 2014 * Joint Force Headquarters Orders 129-1026, dated 9 May 2017 * General Discharge Certificate, dated 9 May 2017 * National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service), dated 9 May 2017 * NGB Form 23B (ARNG Retirement Points History statement), dated 15 May 2017 * Medical Record, dated 20 August 2018 * Joint Force Headquarters – New York (NY) letter, dated 3 July 2019 * VA letter, dated 9 October 2018 * VA letter, dated 12 December 2018 * Pioneer letter, dated 28 March 2019 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Counsel states: a. The applicant enlisted in the Army in 2007 as an 11B (Infantryman) and received an honorable discharge in 2012 after 5 1/2 years of active duty service, a successful deployment to Iraq, and several military awards. After his discharge, he spent approximately 8 months in the Individual Ready Reserve (IRR). On or about 26 June 2013, he started the application to transfer his Post-9/11 GI Bill benefits to his wife and the request was completed in August 2013. As part of the transfer of benefits, he agreed to serve 4 additional years in an authorized Reserve Component from the date of the Transferability Election of Benefits (TEB) on 26 June 2013. b. He began attending drill with the intention of completing at least 4 years. On 2 August 2013, the applicant received a VA Rating of 90 percent based on 15 separate service-connected injuries from head to toe that is fully described in his VA records. Toward the end of his ARNG contract, he was informed that his medical records from his active duty time had been linked to his ARNG medical records that the unit had on file. The merger of these records caused him to become flagged with a “dead man’s” profile, based primarily on his VA Rating. He was not informed that his medical disability claims from active duty would affect his authorized duties in the ARNG. c. Having a “dead man’s” profile in the ARNG meant that the applicant could not participate in any of the unit’s training, including physical training (PT). When he would show up for drill, he would just tin in an office due to the unit’s high operational tempo (OPTEMPO) and physical activity requirements. During this same time, he was trying to get a full-time job with the North Tonawanda City in the signal department and was performing a lot of electrical work on the side. Due to a combination of factors associated with his disability and the fact that he could not participate with his unit, the applicant lost the desire to serve when he wasn’t able to serve in the full capacity that he was accustomed to since first joining the Army in 2007. d. On 9 May 2017, the applicant was separated from the NY ARNG with a general discharge due to continuous and willful absence. The 9 May 2017 separation date put him 48 days short of the date he needed to make 4 years in the ARNG. On 4 May 2018, the applicant’s wife received a letter from the VA informing her that she owed the Federal Government over $33,000.00 due to an “overpayment” associated with school services she used in conjunction with his Post-9/11 GI Bill that he transferred to her. e. After leaving active duty, the applicant was evaluated by the VA for various injuries and disabilities he sustained while serving. After a 2013 examination, the VA found he had the following service-connected disabilities and ratings, combined for a 90 percent disability rating: * migraine headaches, 30 percent * lumbosacral [strain], 20 percent * radiculopathy left lower extremity secondary to lumbosacral [strain], 10 percent * left (dominant) shoulder strain, 10 percent * radiculopathy right lower extremity secondary to lumbosacral [strain], 10 percent * right knee sprain [strain], 10 percent * left knee strain, 10 percent * right ankle sprain [strain], 10 percent * bilateral plantar fasciitis, 10 percent * cervical strain, 10 percent * right (dominant) elbow strain with limited extension, 10 percent * tinnitus, 10 percent f. Constructive credit is warranted for the applicant under the standard of justice. The applicant is a covered person under the rules governing the Post-9/11 GI Bill and he further meets the criteria that would allow him to transfer his educational benefit to his wife. He did in fact complete an active duty enlistment with an honorable characterization of service in 2012. This service qualifies him as eligible to receive his Post-9/11 GI Bill as a covered individual. As a covered individual, he had the legal authority to transfer his interest in his educational benefits to his spouse. g. The applicant largely meets the criteria to transfer his education benefits to his spouse. In order for a spouse to qualify, the election must have been made while the service member completed 6 years of active duty and/or Selected Reserve service, served at least 90 aggregate days of qualifying service, and was a member of the Armed Forces on 1 August 2009. Additionally, the spouse must have been enrolled in the Defense Enrollment Eligibility Reporting System (DEERS) and the service member agreed to serve 4 additional years in the Armed Forces from the date of election. The applicant meets all of these requirements with the exception that he did not complete the full 4 years of his service due to his disabilities. h. During his active duty service, he deployed to Iraq for nearly 12 months and was awarded the following: * Army Commendation Medal * Army Achievement Medal (3) * Army Superior Unit Award * Army Good Conduct Medal * Iraq Campaign Medal with bronze service star * Noncommissioned Officer Professional Development Ribbon * Overseas Service Ribbon * Combat Infantryman Badge * Parachutist Badge i. Constructive credit is appropriate based on a showing of good cause under standards of injustice. Constructive credit should be granted in this case because of the applicant’s 10 years of service and that fact that he was very close, within 50 days, of meeting his service requirement of 4 years of service in the ARNG. Due to his frustration over his own medical situation and his inability to properly train with his unit, he stopped going to drill and was separated. He regrets this decision and understands he should have handled it differently. Nevertheless, he did serve 9 good years toward retirement, including over 5 years on active duty. He is qualified to use his Post-9/11 GI Bill for himself due to his honorable discharge, but he simply wants to support his family by transferring it to his wife. In this case, the applicant’s wife thought the benefits transfer was completed and used it to obtain an education. Now she is being asked to repay over $33,000.00 and the applicant requests action be taken to relieve his spouse of this enormous debt by simply granting him 50 days of credit toward his ARNG service. j. The Army Disability Evaluation System (DES) is designed to ensure all Soldiers are physically qualified to perform their duties in a reasonable manner. As such, medical retention qualification standards have been established to determine the overall effect of one or more impairments on a Soldier’s ability to perform their duties. While the mere presence of one or more 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 their office, grade, rank, or rating, per chapter 3, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). A Soldier may be unfit because of physical disability caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them alone would not cause unfitness. k. The Army defines unfit for duty as the degree to which a Soldier is unable to perform the duties of his office, grade, rank or rating related to his employment on active duty. Physically unfit is synonymous with unfit because of physical disability. The website “Goarmy.com” lists the common duties associated with an 11B (Infantryman), as follows: perform as a member of a fire team during drills and combat, aid in the mobilization of vehicles, troops and weaponry, assist in reconnaissance missions, process prisoners of war and captured documents, use, maintain, and store combat weapons. It also lists several skills associated with serving as an Infantryman: willingness to accept challenges, ability to perform well under stress, be physically and mentally in shape, work as a team member. To be sure, an enlisted Infantryman is one of the most physically demanding jobs in the Army. An Infantryman must be in top physical shape at all times and be able to withstand long periods of mental stress while also being able to perform dangerous combat duties at a moment’s notice. l. Any disease or injury discovered after a Soldier entered active service, except congenital and hereditary conditions, are presumed to have been incurred in the line of duty. Disability compensation is provided to a Soldier to compensate them for those conditions incurred in the line of duty that interrupt a Soldier’s service such that they can no longer continue to reasonably perform because of a physical disability. If an unfitting condition is identified, the next question is whether that condition is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a manner as to reasonably fulfill the purpose of their employment. Such a determination can only be made on an individualized, case-by-case basis. The Army failed to appropriately assess multiple injuries and disabilities the applicant suffered while on active duty, which according to chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), are possibly unfitting for further military service. m. According to the applicant’s VA medical examination on 26 June 2013, he was diagnosed with migraine headaches following his return from deployment to Iraq. A review of his entrance medical examination prior to joining the Army is negative for this issue. The VA assigned him a 30 percent rating for this based on characteristic prostrating attacks occurring on an average of once per month over the last several months. Per Army Regulation 40-501, chapter 3, migraine headaches, when manifested by frequent incapacitating headaches are cause for referral to an MEB. All such Soldiers are to be referred to a neurologist to ascertain the cause of the headaches. If the Soldier does not respond to a 3-month trial of therapy and medicine, the Soldier will undergo an MEB. For an Infantryman, even a migraine once a month could possibly prevent a Soldier from performing his assigned duties, as he must be mentally in shape and perform well under stress for long periods of time in the field or in combat. It is also significant that his initial migraine diagnosis was right after he returned from Iraq. n. According to his VA medical examination on 26 June 2013, the applicant injured his back on 16 July 2008 while picking up boxes. He required treatment and his lower back continues to worsen. The VA assigned him a 20 percent disability rating for his lumbosacral strain based on forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; and painful motion upon examination. Non-radicular pain involving the lumbosacral spine that fails to respond to treatment and necessitates significant limitation of physical activity can be referred to an MEB. o. Plantar fasciitis that interferes with satisfactory performance of military duties can be referred to an MEB. According to the applicant’s VA medical examination on 26 June 2013, the physician noted service treatment records in July 2007 indicated treatment for plantar fasciitis. The applicant received continuing treatment throughout his service and has pain in his arches, regularly wearing shoe orthotics for relief. It was determined his bilateral foot problem was severe and he was given a 10 percent rating by the VA based on bilateral involvement. p. During the 26 June 2013 medical examination, the VA doctor identified the chronic and unclaimed condition of cervical strain. The problem has continued o n a daily basis and gets worse with activity. The VA assigned him a 10 percent rating based on a combined range of motion of the cervical spine of greater than 170 degrees, but not greater than 335 degrees. Non-radicular pain involving the cervical spine that fails to respond to treatment and necessitates significant limitation of physical activity can be referred to an MEB. q. The applicant was granted service-connection for his right (dominant) elbow strain with limited extension with a rating of 10 percent. The VA physician noted the applicant had complaints of pain in both elbows after hitting the ground during airborne training, which was noted in 2010. The pain has persisted and has a tendency to wake him up when he is sleeping. Joint range of motion which does not equal or exceed elbow extension to 60 degrees can be referred to an MEB. r. The VA conceded exposure to excessive noise trauma during active duty service and the physician also noted the applicant was diagnosed with the hearing disorder tinnitus, granting him a service-connected rating of 10 percent for tinnitus. Soldiers with a permanent physical profile rating of “4” for hearing can be referred to an MEB. s. In conclusion, they ask that the Board grant the applicant 50 days of service, so his transfer of education benefits to his spouse is deemed lawful and they are relieved from a debt in excess of $33,000.00. They also respectfully request the Board to consider the applicant for physical disability retirement through the DES, which is designed to consider the effects of one or more impairments on an individual’s ability to perform the functions of his job. A denial of his multiple unfitting conditions for evaluation by the DES is both unjust and in error. The applicant is a combat veteran without the necessary support and care he deserves and so painstakingly earned. 3. The applicant states: a. He enlisted in the Army in 2007 as an 11B (Infantryman) and received an honorable discharge in 2012 after 5 1/2 years of active duty service. After his discharge, he spent approximately 8 months in the IRR. On or about 26 June 2013, he started the application to transfer his Post-9/11 GI Bill benefits to his wife and the request was completed in August 2013. As part of the transfer of benefits, he agreed to serve 4 additional years in an authorized Reserve Component from the date of the TEB on 26 June 2013. b. He began attending drill with the intention of completing at least 4 years. On 2 August 2013, he received a VA Rating of 90 percent based on 15 separate service- connected injuries from head to toe that is fully described in his VA records. Toward the end of his ARNG contract, he was informed that his medical conditions caused him to become flagged with a “dead man’s” profile, based primarily on his VA rating. He was not informed that his medical disability claims from active duty would affect his authorized duties in the ARNG. c. Having a “dead man’s” profile in the ARNG meant that he could not participate in any of the unit’s training, including PT. When he would show up for drill, he would just sit in an office due to the unit’s high OPTEMPO and physical activity requirements. During this same time, he was trying to get a full-time job with North Tonawanda City in the signal department and was performing a lot of electrical work on the side. Due to a combination of factors associated with his disability and the fact that he could not participate with his unit, he lost the desire to serve when he wasn’t able to serve in the full capacity that he was accustomed to since first joining the Army in 2007. d. On 9 May 2017, he was separated from the NY ARNG with a general discharge due to continuous and willful absence. The 9 May 2017 separation date put him 48 days short of the date he needed to make 4 years in the ARNG. On 4 May 2018, his wife received a letter from the VA informing her that she owed the Federal Government over $33,000.00 due to an “overpayment” associated with school services she used in conjunction with his Post-9/11 GI Bill that he transferred to her. e. He is truly sorry that he was not able to complete his service requirement; however, he does not believe that his failure to complete his required service should result in over $33,000.00 in debt. As a matter of justice, he is asking for relief from this burden. He humbly requests 50 days of service credit in order for his Post-9/11 GI Bill transfer to be deemed valid. 4. The applicant enlisted in the Regular Army on 26 June 2007 and was awarded the military occupational specialty (MOS) 11B. 5. He deployed to Iraq from 5 December 2008 through 17 November 2009. 6. His Enlisted Record Brief (ERB), printed on 6 September 2012, shows his physical profile rating was “1” in all categories. 7. The applicant’s DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER), covering the period from 31 December 2011 through 7 September 2012, shows the applicant was rated “Excellence (Exceeds standard)” in all categories of Part IV (Rater), with bullet comments including the following: * qualified expert on assigned weapon * relied upon to perform as a cell leader independent of platoon leadership during seven Mission Readiness Exercises at the Joint Readiness Training Center * scored 282 on the Army Fitness Test (APFT) on 26 September 2011; earned the Army Physical Fitness Badge * trained and developed his squad in all physical tasks and warrior skills * initiative and overall performance set him apart from his peers in every event during the rated period 8. The applicant’s available service records from this period of service in the Regular Army do not show: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 9. A DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows the applicant enlisted in the ARNG on 3 August 2013 for a period of 1 years, 11 months, and 28 days. 10. His DD Form 214 shows he was honorably released from active duty on 5 November 2012, due to the completion of required active service after 5 years, 4 months, and 10 days of net active service and was transferred to a unit in the ARNG. 11. A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) shows on 4 January 2013, the applicant extended his enlistment in the ARNG by a period of 6 years, giving him a new expiration term of service (ETS) date of 5 November 2019. 12. A VA Rating Decision, dated 2 August, shows the applicant was granted a service- connected disability rating effective 6 November 2012 for the following conditions: * migraine headaches, 30 percent * lumbosacral strain, 20 percent * radiculopathy, left lower extremity, 10 percent * left (dominant) shoulder strain, 10 percent * right knee strain, 10 percent * left knee strain, 10 percent * right ankle strain, 10 percent * bilateral plantar fasciitis, 10 percent * cervical strain, 10 percent * right (dominant) elbow strain with limited extension, 10 percent * left ankle strain, 0 percent * left (non-dominant) elbow strain, 0 percent * right (dominant) elbow strain with limited flexion, 0 percent 13. A Post 9/11 Educational Benefits Transferability Commitment and Statement of Understanding, signed by the applicant on 10 August 2013 shows: a. He acknowledged he met the basic eligibility criteria in that: * he completed a minimum of 6 years in the Armed Forces (Active Duty and/or Selected Reserve) * he served a period of at least 90 aggregate days of qualifying service on Title 10 or Title 32 after 10 September 2001 * he would be a member of the Armed Forces (Active Duty or Selected Reserve) on or after 1 August 2009 b. He acknowledged that approval of his request to transfer his educational entitlement to his spouse obligated him to agreeing to serve for 4 years in the Armed Forces from the date of his TEB web application request as indicated in block 1f (TEB Web Date) above. Block 1f shows the TEB Web Date to be 26 June 2013. c. He acknowledged understanding the following: * this service agreement did not obligate the military service to retain him on active duty or in the Selected Reserve * failure to complete this service agreement may lead to termination of his transfer of benefits to his eligible dependents and may create an overpayment by the VA for any payments made after his date of termination * if he did not complete his service obligation, it was his responsibility to contact the ARNG GI Bill Support Team regarding potential GI Bill recoupment action * he and his dependents were jointly liable for any overpayments due to him not fulfilling this agreement 14. A VA letter, dated 8 January 2014, verified the applicant received $1,857.34 per month for a service-connected disability and was rated at 90 percent. 15. The applicant received three NCOERs during his period of service in the ARNG. a. His NCOER covering the period from 8 September 2012 through 7 September 2013 shows the applicant was rated “Excellence (Exceeds standard)” or “Success (Meets standard) in all categories in Part IV, with bullet comments including the following: * selected as unit resiliency training assistance, conducting comprehensive Soldier fitness training * requested by name and assigned as unit retention NCO * passed APFT on 3 May 2013, with an overall score of 273 * excellent mental and physical abilities; displayed strong stamina during training year and at 2013 annual training at Fort Indiantown Gap, PA b. His NCOER covering the period from 8 September 2013 through 7 September 2014 shows the applicant was rated “Excellence (Exceeds standard)” or “Success (Meets standard) in all categories in Part IV, with the exception of “Values/NCO Responsibilities” where he received a “Needs Improvement (Some)” rating due to failing to meet Advanced Leader Course (ALC) distance learning course requirements and being dropped from the course. The other bullet comments including the following: * often volunteers to meet on his personal time with his troopers who struggle with physical fitness * scored a 270 on his last APFT on 17 May 2014, ranking him in the top three scores every test * chosen ahead of peers to fill the position of team leader, one pay grade higher, while exceeding expectations in the absence of a staff sergeant/E-6 team leader c. His NCOER covering the period from 8 September 2014 through 7 September 2015 shows the applicant was rated “Excellence (Exceeds standard)” or “Success (Meets standard) in all categories in Part IV, with bullet comments including the following: * passed the APFT on 17 October 2014 * performed as the NCOIC of the platoon remedial PT program resulting in all APFT fails in the platoon showing improved scores * has proved to have the mental and physical toughness to perform duties as a convoy commander for extended periods * selected as acting platoon sergeant while all senior NCOs in the platoon were tasked in May’s drill 16. The applicant’s available records from his ARNG service do not contain reference to any permanent or temporary physical profile ratings or restrictions and the applicant has not provided copies of them. 17. Joint Force Headquarters Orders 129-1026, dated 9 May 2017, discharged the applicant from the ARNG with a general characterization of service, effective 9 May 2017, under the provisions of National Guard Regulation (NGR) 600-200 for continuous and willful absence. The applicant provided a General Discharge Certificate which likewise shows he was given a general discharge, under honorable conditions from the ARNG effective 9 May 2017. 18. The applicant’s service records are otherwise void of documentation pertaining to his unsatisfactory participation, also referred to as continuous and willful absence. 19. His NGB 22 shows he was given a general discharge, under honorable conditions from the ARNG effective 9 May 2017, under the provisions of NGR 600-200, chapter 6 and Army Regulation 135-178. He completed 4 years, 6 months and 4 days of net service this period, with 7 months and 22 days of net prior Reserve Component service from 6 November 2012. 20. The applicant provided a multi-page Medical Record, dated 20 August 2018, which has been provided in full to the Board. It lists numerous visits at Army Medical Clinics between July 2007 and August 2012, listing the encounter date, clinic, clinician, and facility. Narrative description of resultant treatment, diagnosis, prognosis, and resultant physical profile is not included. 21. A VA, Buffalo Regional Office letter, dated 4 May 2018, informed the applicant’s wife that due to corrections or changes to her Chapter 33 (Post-9/11 GI Bill) eligibility information, she was paid more than she was due for her enrollments during the terms beginning on 26 August 2013, 21 January 2014, and 9 September 2014. She was advised her total overpayment resulted in a debt in the amount of $33,069.75 for charged tuition/fees, books and supplies, and monthly housing allowance and she was responsible for all debts resulting from the corrections, reductions, or terminations of her enrollment. 22. The applicant provided three further letters: a. A VA letter dated 9 October 2018, advised the applicant they were working his claim and asked the VA medical facility nearest to him to schedule him for an examination in connection with this claim. b. A VA Debt Management Center letter, dated 12 December 2018, advised the applicant’s wife they sent her numerous requests for payment of a benefit debt owed to the VA and since the balance remained delinquent, they referred her account to the Department of Treasury for further collection by law. c. A Pioneer Credit Recovery Inc. letter, dated 28 March 2019, informed the applicant’s representing Counsel they previously notified him that Pioneer Credit Recovery, Inc. was assigned by the U.S. Department of the Treasury to collect a debt for which a payment arrangement in the amount of $725.33 was made, was due on 11 April 2019. 23. A Joint Force Headquarters NY letter to the applicant and his Counsel, dated 3 July 2019 advised them that their request for relief in the form of constructive credit was returned without action and advised them to appeal to the ABCMR. 24. 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 authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 25. 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 VA rating does not establish an error or injustice on the part of the Army. 26. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 27. Based on the applicant’s condition the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations. 2. The applicant is applying to the ABCMR in essence requesting a medical retirement and failing that, a referral to the Disability Evaluation System (DES). 3. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s National Guard Report of Separation and Record of Service (NGB Form 22) shows he enlisted into the New York Army National Guard on 6 November 2012 and received a general discharge from the New York Army National Guard on 9 May 2017 for “Continuous and Willful Absence.” 4. Review of his active duty medical records in AHLTA shows no significant medical issues or concerns. The majority of his visits during this six-year period were for routine health care maintenance to meet Soldier readiness requirements (immunizations, exams, etc.). He was seen in the concussion care clinic on 13 November 2009 for routine screening upon his return from deployment. The applicant reported that he had no symptoms of concussion, was not experiencing neurological difficulties, and “denied a head injury while deployed resulting in any of the following: Being dazed/confused, not remembering the injury, LOC {loss of consciousness}, concussion symptoms.” 5. The applicant underwent a pre-separation health assessment and mental health screening in June 2012 and no abnormalities were noted. 6. While the application references a “dead man’s profile”, a term for a profile with severe activity restrictions, no permanent profile was found in the supporting documentation or in the electronic health records, including MEDCHART. The three non-commissioned officer evaluation reports covering 8 September 2012 thru 9 September 2015 show the applicant passed his Army Physical Fitness Test (APFT) all three years, either met or exceeded standards in all areas, and was determined “Fully Capable” by three different senior raters. 7. There is no evidence the applicant had a medical condition which would have failed the medical retention standards of chapter 3, AR 40-501, prior to his discharge. Thus, there was and still is no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to attend drill weekends or to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. 8. The supporting documentation contains a VA rating decision showing service connected disability ratings from 0% to 30% for a number of conditions. However, the DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were the cause for their prior medical separation; or for compensating conditions which did not contribute to career termination. These roles and authority is granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. 9. Given the current documentation, it is the opinion of the Agency Medical Advisor that neither a change in the reason for separation nor a referral of his case to the DES is warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found partial relief is warranted. The Board further found the available evidence is sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board noted the applicant's three "good" years of ARNG service, and a fourth year in which he earned 33 of the 50 points required for a "good" year. Considering all of the facts of this case, the Board determined the applicant's cumulative points earned from 27 June 2013 (the date he completed 6 years of service to become eligible for TEB) through 9 May 2017 should be considered as sufficient to satisfy the service requirement he incurred as a result of his approved TEB request. 3. The Board carefully reviewed the applicant's statement, counsel's statement, and the documents provided. The Board found insufficient evidence indicating the applicant had been diagnosed with any conditions that did not meet retention standards prior to his release from active duty in 2012 or during his period of ARNG service. The Board concurred with the conclusion of the ARBA Medical Advisor that the available evidence does not support changing the reason from his separation from the Regular Army o the ARNG, nor does the available evidence support referring his case to the DES. The Board determined that neither the applicant's release from active duty by reason of completion of required active service nor his discharge from the ARNG were in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XX :XX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by showing his Army National Guard service from 27 June 2013 through 9 May 2017 satisfied the service obligation he incurred as a result of his approved request to transfer his Post-9/11 GI Bill education benefits. 2. The Board further determined 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 retirement for disability or referral to the Disability Evaluation System. 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, 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. National Guard Regulation 600-200 (Enlisted Personnel Management), prescribes the criteria, policies, process, procedures and responsibilities to classify, assign, utilize, transfer between states, separate and appoint Army National Guard (ARNG) and Army National Guard of the United States (ARNGUS) enlisted Soldiers. Chapter 6 (Enlisted Separations) sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG/ARNGUS. It states if a Soldier’s service has been honest and faithful, it is appropriate to characterized that service as under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspect of the Soldier’s conduct or performance of duty outweighs positive aspects of the Soldier’s military record. 6. Army Regulation 135-178 (ARNG and Reserve Enlisted Administrative Separations) establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNG/ARNGUS and the U.S. Army Reserve (USAR). Chapter 12 provides guidance of unsatisfactory participation and states a Soldier is subject to discharge for unsatisfactory participation when it is determined that the Soldier is unqualified for further military service because he/she is an unsatisfactory participant. Characterization of service in such a case will normally be under other than honorable conditions, but characterization as general (under honorable conditions) may be warranted. 7. The Post-9/11 Veterans Educational Assistance Act of 2008 is described under Title V of the Supplemental Appropriations Act of 2008, Public Law 110-252, House of Representatives, 2642. In July of 2008, Congress passed a law for the Post-9/11 GI Bill that went into effect on 1 August 2009. Individuals with qualifying active duty service after 10 September 2001, those who served an aggregate period of 90 days to 36 months on active duty or served at least 30 continuous days and were discharged from active duty due to a service-connected disability, were deemed eligible for the Post-9/11 GI Bill. Public Law 110-252, section 3319, provides the eligibility requirements necessary to transfer unused educational benefits to family members. A service member may execute transfer of benefits only while serving as a member of the Armed Forces. The VA is responsible for final determination of eligibility for educational benefits under this program. 8. On 22 June 2009, DOD established the criteria for eligibility and transfer of unused educational benefits to eligible family members. The policy states an eligible member is any member of the Armed Forces on or after 1 August 2009 who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill and: a. has at least 6 years of service in the Armed Forces on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election; or b. has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election, is precluded by either standard policy (service or DOD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute, or c. is or becomes retirement eligible during the period from 1 August 2009 through 31 July 2013. A service member is considered to be retirement eligible if he or she has completed 20 years of active duty or 20 qualifying years of Reserve service. 9. Department of Defense Instruction 1312.03 (Entry Grade Credit for Commissioned Officers and Warrant Officers), establishes policy, assigned responsibility, and details procedures governing the award of entry grade credit to persons receiving original appointments as regular or Reserve commissioned officers or warrant officers consistent with Title 10, U.S. Code sections 533 and 12207. Constructive credit is used to determine rank and grade based on prior service and advanced degrees for appointments in professional specialties. The purpose of constructive credit is to provide grade and date of rank comparability for persons commissioned after obtaining advanced education, training or experience relative to a contemporary who began commissioned service immediately after obtaining a baccalaureate degree. This instruction prescribes the number of years creditable as constructive service credit for chaplains, Judge Advocate General officers and the appointment of officer recipients of other professional degrees including medical, osteopathy, dental, optometry, podiatry, veterinary, and pharmacy. 10. 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. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 11. Title 38 U.S. Code 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 12. Title 38 U.S. Code 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002587 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1