IN THE CASE OF: BOARD DATE: 16 January 2014 DOCKET NUMBER: AR20130002960 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 correction of his records and/or discharge from the Ohio Army National Guard (OHARNG) to show he was: * medically retired and/or separated with a disability and entitlement to severance pay * promoted to the rank/grade of sergeant (SGT)/E-5 2. The applicant states he was never given the opportunity to go before a Medical Evaluation Board (MEB), a Physical Evaluation Board (PEB), to receive representation by military counsel, and he was still under the care of a military doctor at the time of his discharge. He was misinformed about the processes involved and was, therefore, unable to receive a medical retirement or severance pay. Additionally, at the time of his discharge his promotion orders for SGT were supposed to have been sent forward. Therefore, he should be promoted to SGT. 3. The applicant provides: * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending on 1 October 2002 * NGB Form 22A (Correction to NGB Form 22) for the period ending 1 October 2002 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 29 July 2001 * four memoranda, dated 5 October 2001, 19 August 2002, 9 February 2004, and 7 June 2004 * Standard Form (SF) 600 (Patient Encounter Form), dated 10 August 2001 and 18 December 2001 * Air Force (AF) Form 781 (Multiple Item Prescription), dated 10 August 2001 * six Army Guard Ohio (AGOH) Forms 135-11-R (Incapacitation-Physician's Statement), dated 1 August 2001, 1 October 2001, 18 December 2001, 18 April 2002, 7 August 2002, and 9 September 2002 * Medical Duty Review Board (MDRB) Action, dated 20 April 2002 * Letter, dated 18 December 2007 * Various email traffic ranging in date from 14-22 August 2012 * Excerpts from Title 10, U.S. Code (USC), Section 12731b and National Guard Regulation (NGR) 40-501 (Standards of Medical Fitness-ARNG) * Self-authored statement, dated 29 July 2012 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. After having had previous enlisted service the applicant enlisted in the OHARNG on 30 September 1998 and held military occupational specialty 71L (Administrative Specialist). The highest rank/grade he attained was specialist (SPC)/E-4. 3. His record contains Orders Number 065-002, issued by the OHARNG, on 4 April 2001, which ordered him to active duty for training (ADT) at Fort McCoy, WI, from 14 July 2001 to 27 July 2001. 4. His record contains several documents referring to his injuries and a Line of Duty (LOD) determination which included a: a. DA Form 2823 (Sworn Statement) given by the applicant on 26 July 2001, wherein he stated he had been playing basketball at the recreation center at Fort McCoy, WI, on 26 July 2001. He jumped up in the air to take a shot when another player knocked his legs out from under him. Upon landing he broke his fall with his left hand which bent backwards as he landed on his hand and back. Later that night his back and hand felt stiff. The next day he was experiencing a lot of pain in his left wrist and back. b. LOD statement, issued by Dr. HDS, an urgent care family practice physician, on 26 July 2001. The LOD statement reads "L wrist FX vs tendonitis" (left wrist fracture versus tendonitis). However, the applicant had neither a wrist fracture nor tendonitis. He was eventually (after x-rays and bone scan) diagnosed with wrist sprain. c. DA Form 2173, dated 29 July 2001, showing he received two injuries at Fort McCoy, WI. The first injury was annotated as a left wrist injury, the second injury was illegible and impossible to determine due to the quality of the handwriting. The medical official who completed the form indicated the injuries were incurred in the line of duty while the applicant was on ADT. d. AGOH Form 40-20a (Informal/Formal LOD Investigation Advisement), dated 29 July 2001, shows he acknowledged he had been informed of his rights and that he did not have to make a statement relating to the origin, incurrence, or aggravation of his injuries. e. SF 600, dated 1 August 2001, which shows he hurt his left wrist and right upper back while playing basketball. The examining physician diagnosed him with a sprained left wrist and a muscle strain to the right upper back. f. A completed LOD determination, dated 5 October 2001, which stated that something was determined to be in LOD. It does not state any specific malady or injury to be in LOD and it does not refer to any particular date of occurrence that might assist in determining if this LOD approval is in any way related to the injury on 26 July 2001. 5. His record contains a DA Form 4187 (Personnel Action), dated 20 August 2001, showing he was promoted to SPC effective 29 July 2001. 6. His record contains a clinical note, dated December 2001, which stated that his wrist was no longer tender but "Pain now localized to elbow." 7. His record contains a DD Form 261 (Report of Investigation LOD and Misconduct Status), completed on 13 March 2002, which shows he reported an infection to his left toe on 30 November 2000. At the time he was listed as present for duty. The final LOD approval was issued on 13 March 2002, when the disease, an ingrown toenail with secondary infection, was determined to be in LOD, to have existed prior to service (EPTS) because the onset began 4 days prior to his entry onto ADT, and not to have been aggravated by military service. 8. His record contains an LOD determination memorandum, dated 26 March 2002, showing his ingrown toenail with secondary infection was determined to be in LOD-EPTS-No Aggravation. 9. His record does not contain promotion orders promoting him to the rank of SGT. Additionally, there is no evidence he was recommended for promotion. 10. His record does not contain any evidence to show he was offered an opportunity to go to an MEB. 11. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his service records contain Orders Number 187-034, issued by the OHARNG, on 26 September 2002, honorably discharging him from the ARNG, effective 1 October 2002 under the provisions of NGR 600-200 (Enlisted Personnel Management), paragraph 8-26j(1) by reason of not being retained by the MDRB. 12. His NGB Form 22 shows he was honorably discharged on 1 October 2002, in accordance with (IAW) NGR 600-200, paragraph 8-26j(1) by reason of being medically unfit for retention. 13. On 15 February 2013, an advisory opinion was received from the NGB, Deputy Chief, Personnel Policy Division. The advisory official recommended a partial approval of the applicant's request and stated: a. The applicant requests a re-evaluation of his discharge from the OHARNG in order to grant him a medical retirement as well as severance pay. Additionally, the applicant suggests an order should have been published promoting him to SGT/E-5. b. The applicant's discharge from the OHARNG should be re-evaluated and he should be granted the right to appear before an MEB. The applicant's specific requests should be addressed following the results of the MEB. In regard to the Soldier's claim that he should have been promoted to SGT, there is no supporting documentation to warrant relief in this matter. c. The applicant received an LOD determination on 1 October 2001 from the Adjutant General's Department of the OHARNG which states, "The enclosed line of duty investigation has been reviewed for completeness, found to be IN LINE OF DUTY and is approved." d. On 19 August 2002, the applicant received a letter from the OHARNG Adjutant General's Department titled, "Separation from the OHARNG." It states, "The State MDRB has reviewed and evaluated your medical records for fitness for duty and has recommended that you be separated from the OHARNG, for failure to meet the medical standards, IAW Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). I have approved their recommendation; therefore, you will be separated from the OHARNG, effective 1 October 2002." e. Referencing NGR 40-501, dated 1994, which would have been in effect at the time of the discharge, the OHARNG suggests the Soldier should have been afforded the opportunity to go before an MEB. The State states that in cases where there is an LOD injury or diseases and separation is recommended, the MEB/PEB process will be initiated IAW Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers), Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Army Regulation 600-8-1 (Army Casualty Program) and NGR 40-3 (Medical Care for Army National Guard Members). f. The OHARNG was unable to find documentation that would indicate the applicant was afforded the opportunity to present before the MEB/PEB. g. The DA Form 2173 provided in evidence shows that the injury which caused his unfitting condition was incurred in LOD; therefore, according to the cited references the appropriate course of action should have been to refer the Soldier to an MEB. h. Considering there is no documentation that would indicate the applicant declined an opportunity to present before the MEB, it is suggested he receive administrative relief in this matter and be afforded the opportunity of an MEB. The Soldier's specific concerns should be addressed by the State pending the results of the board. The Soldier provided no documentation regarding his claim that he should have been promoted to SGT/E-5; therefore, the NGB does not recommend relief in this matter. 14. On 1 March 2013, he responded to the advisory opinion and concurred with the advisory official’s recommendations. 15. He provided numerous AGOH Forms 135-11-R and two letters, dated 9 February 2004 and 7 June 2004 issued by Dr/colonel (COL) RLS, U.S. Air Force (USAF), a military physician. The AGOH Forms 135-11-R show Dr./Colonel (COL) RLS determined he was incapacitated from 1 August 2001 to 9 September 2002. These forms show: a. The applicant sprained his wrist playing basketball on the next to last day of his 2-week ADT in 2001. He received several months of incapacitation pay because his physician, Dr. RLS, affirmed that he could not work at his regular job at the local hospital. He later developed tennis elbow on both sides and was also treated for this condition at the U.S. Air Force (USAF) clinic as a service-connected condition. Dr. RLS also affirmed that the applicant could not perform the duties of his MOS, specifically, typing, maintaining files, maintaining unit and personal equipment (weapon, mask), and assisting with security clearances because of his sprained wrist. Dr. RLS continued to provide incapacitation statements for the applicant for the next 14 months. The last statement reflects a diagnosis of bilateral epicondylitis (tennis elbow, both sides). b. He was medically excused from his civilian job. c. In December 2001, his wrist sprain was no longer symptomatic but he continued to receive incapacitation pay for bilateral tennis elbow. 16. He provided an MDRB Action, dated 20 April 2002, showing the MDRB determined he should be separated and stated he was not fit for duty. 17. He provided a memorandum, issued by the OHARNG on 19 August 2002 which stated the State MDRB had reviewed and evaluated his medical records for fitness of duty and recommended that he be separated from the OHARNG for failure to meet the medical standards IAW with Army Regulation 40-501. The assistant Deputy Chief of Staff for Personnel approved the MDRB's recommendation and indicated he would be separated from the OHARNG effective 1 October 2002. 18. He provided two letters, dated 9 February 2004 and 7 June 2004, written by USAF Dr. RLS in an attempt to get the Department of Veterans Affairs (VA) to determine that the epicondylitis was service-connected. Dr. RLS stated that he thought that the epicondylitis of both elbows was due to the original left wrist sprain that had long since healed (December 2001 clinic note stated that the wrist was no longer tender but "Pain now localized to elbow"). 19. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement. a. Chapter 3 provides guidance on the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for service. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of their duties; may compromise or aggravate the Soldier’s health or well-being if the Soldier were to remain in the military Service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the Government if the individual Soldier were to remain in the military Service. b. Chapter 10 provides guidance on the basic policies, standards, and procedures for medical examinations and physical standards for ARNG and Army National Guard of the United States (ARNGUS) Soldiers. Paragraph 10-25 relates to ARNG and ARNGUS Soldiers pending separation for failing to meet medical retention standards. Sub-paragraph 10-25b states that Soldiers pending separation for In the Line of Duty (ILOD) injuries or illnesses will be processed in accordance with Army Regulation 40–400 (Patient Administration) and Army Regulation 635-40. 20. Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Paragraph 3-4 provides that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LOD 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; and (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. b. Paragraph 8-2 states that Soldiers of the Reserve Components are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training. c. Paragraph 8-6 states that when a commander believes that a Soldier not on extended active duty is unable to perform his or her duties because of physical disability, the commander will refer the Soldier for medical evaluation. The Medical Treatment Facility (MTF) commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation. The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition. If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. If the Soldier is not eligible for referral to a PEB, the MTF will notify the Soldier’s unit commander for disposition under applicable regulations. d. Paragraph 8-9 states that a Soldier not on extended active duty, who is unfit because of physical disability: (1) May be permanently retired or have his or her name placed on the TDRL, if he or she has at least 20 years of service, their disability is rated at 30 percent or more, and his or her disability occurred in the line of duty, and is the proximate result of performing active duty or IDT. (2) May be separated with severance pay if his or her disability is rated at less than 30 percent, he or she has less than 20 years of service, and their disability occurred in the line of duty, and is the proximate result of performing active duty or IDT. (3) Will be separated without benefits if the unfitting condition results from injury which is due to intentional misconduct or willful neglect, the disability was incurred during a period of unauthorized absence, and/or the disability was not incurred or aggravated as the proximate result of performing duty as specified in paragraph 8–2. 21. NGR 600-200 paragraph 8-26, governs the discharge from the State Army National Guard and/or as a Reserve of the Army. Subparagraph 8-26j(1) states Soldiers are discharged from the State ARNG or from the Reserve of the Army when a Soldier is determined to be medically unfit for retention per Army Regulation 40-501, chapter 3. Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501 and NGR 40-501. DISCUSSION AND CONCLUSIONS: 1. The applicant apparently sprained his wrist playing basketball on the next to last day of his 2-week ADT in July 2001. An urgent care family practice physician provided a diagnosis on an LOD statement that reads "L wrist FX vs tendonitis" (left wrist fracture versus tendonitis). The applicant had neither a wrist fracture nor tendonitis. He was eventually (after x-rays and bone scan) diagnosed with wrist sprain. 2. The NGB provided an LOD determination, dated 5 October 2001, which does not mention any specific malady or injury in LOD and it does not refer to any particular date of occurrence that might assist in determining if this LOD approval is in any way related to the putative injury on 26 July 2001. If the NGB LOD finding is related to the injury reported on 26 July 2001, then it is for wrist fracture vs. tendonitis. As previously stated, the applicant had neither. At best the NGB can only be acknowledging that the applicant reported being injured while playing basketball on 26 July 2001. It is reasonable to infer that the NGB was acknowledging that the applicant had a wrist sprain. 3. He received several months of incapacitation pay because his physician, Dr. RLS, USAF, affirmed that he could not work at his regular job at the local hospital. He later developed tennis elbow on both sides and was also treated for this condition at the USAF clinic as a service connected condition. Dr. RLS also affirmed that the applicant could not perform the duties of his MOS, specifically; typing, maintaining files, maintaining unit and personal equipment (weapon, mask), and assisting with security clearances because of his sprained wrist. Dr. RLS continued to provide incapacitation statements for the applicant for the next 14 months. The last statement reflects a diagnosis of bilateral epicondylitis (tennis elbow, both sides). 4. In 2004 Dr. RLS wrote two letters for the applicant in an attempt to get the VA to determine that the epicondylitis was service-connected. Dr. RLS stated that he thought that the epicondylitis of both elbows was due to the original left wrist sprain that had long since healed (December 2001 clinic note stated that the wrist was no longer tender but "Pain now localized to elbow"). The fact that the VA did not consider tennis elbow to be service-connected is strong evidence that the ARNG did not consider tennis elbow to be service-connected. While it is true of some conditions that the altered mechanics of one joint can produce symptoms in another joint, this would not apply to the applicant's injury. Injury to a weight bearing joint such as a knee can sometimes produce symptoms in a hip because of the altered mechanics of walking. This is sometimes a temporary sequelae if the patient is not bedfast and must ambulate (with crutches, a brace, or a cast). In the case at hand, the applicant had a wrist sprain. He was medically excused from his civilian job and was not even allowed to file papers at his Guard unit. There is no medical reason for his wrist sprain to have caused bilateral epicondylitis. Additionally, over 6 months after his wrist had healed he reportedly still had epicondylitis and could not work or drill. 5. His application is complicated by an NGB advisory opinion which states that the applicant had an LOD and should have received an MEB. It establishes absolutely no connection between the LOD and the applicant's medically disqualifying condition. In fact, the Personnel Officer writing for the NGB quotes two OHARNG documents, neither of which name the LOD condition, the disqualifying medical condition, nor conclude that the applicant should have had an MEB. The NGB opinion also stated that the OHARNG cannot find the documents to confirm that the applicant was appropriately counseled about his right to an MEB. The NGB opinion was guided by opinion from the OHARNG where a Medical Service Corps Officer concluded that since the applicant had an LOD, he should have had an MEB. There is no attempt to show that the LOD was for the same condition for which the applicant was subsequently discharged. 6. In the absence of any document showing the medically disqualifying condition, it can only be concluded that the LOD determination was not for the applicant's sprained wrist. Medical records do show that his wrist was asymptomatic within 6 months of the injury. It can be presumed that the disqualifying condition was the bilateral epicondylitis because this was the malady for which the applicant received incapacitation pay for the last 6-9 months of his incapacitation. This was also the condition which Dr. RLS later tried to convince the VA was service-connected. The fact that in 2004, over 2 years after discharge, the VA did not accept bilateral epicondylitis as service-connected is strong evidence that the OHARNG had not considered it to be service-connected or in LOD and, therefore, did not offer an MEB. 7. There are key documents missing from this application. For example, there were no documents to indicate why the applicant was medically separated, like a profile with a diagnosis. His record did not contain and he did not provide his Annual Medical Certificate or Functional Capacity where he self reported his physical capabilities. Additionally, his record did not contain and he did not provide the physical profile that was generated by the OHARNG in response to that self-report. He was separated in October 2002 for an undisclosed medical condition. 8. Government regularity in this case would dictate that the OHARNG reviewed the applicant's Functional Capability Statement and determined that he no longer met retention standards. Once this was determined a letter would then have been sent to the applicant asking for medical documentation. If the applicant had an LOD statement for his disqualifying condition, he would have been referred to an MEB. If not, he could have requested a non-duty related PEB to argue that he was fit. There would have been two other options on the form letter the OHARNG would have sent pertaining to retirement; however, these options were not applicable to the applicant. 9. There are several unknowns within the confines of this case; nevertheless, the medical evidence of record does not support the conclusion reached by the NGB. Additionally, the NGB opinions should be disregarded because it is not an expert opinion and it is contradicted by the available medical facts. a. The applicant received an LOD statement for a wrist injury in July 2001. b. In December 2001 his wrist was no longer symptomatic but he continued to receive incapacitation pay for bilateral tennis elbow. c. The OHARNG informed him that he was being separated for a medical disqualification. He was also deemed by his health care provider to be unable to perform his drill duties as an administrative specialist. d. On separation the VA did not grant service-connection for tennis elbow. At some point over 2 years after discharge, the applicant apparently appealed that decision and provided letters from his health care provider opining that his tennis elbow was service-connected. However, there are no documents that indicate the VA has at any subsequent time granted service-connection for tennis elbow. 10. It is reasonable to conclude that the applicant was separated from the OHARNG in 2002 because of bilateral tennis elbow. Neither the OHARNG nor the VA considered his malady to be service-connected. After appeals to the VA and the NGB, there is no indication that either entity granted service connection for his disqualifying condition. After the applicant had been separated for over 10 years, the OHARNG and the NGB have opined that his unspecified disqualifying condition (presumed from incapacitation statements to be tennis elbow) was incurred in LOD and that he should have been referred to an MEB. The available record not only does not support that conclusion, it contradicts it. As such, there is insufficient medical evidence to justify granting the requested relief. 11. His records do not contain any evidence such as orders, a recommendation, or a promotions standing list to show he was eligible for promotion to SGT. Additionally, he has not provided evidence to show he was entitled to promotion to SGT at the time of his discharge. Therefore, there is insufficient evidence to justify correcting his record to show his rank as SGT. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. ABCMR Record of Proceedings (cont) AR20130002960 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130002960 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1