IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150002699 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ____x___ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150002699 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by affording him processing through the Integrated Disability Evaluation System (IDES) to determine if he should have been discharged or retired by reason of physical disability. a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his type of discharge without evaluation under the IDES. _____________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. IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150002699 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his honorable discharge from the Montana Army National Guard (MTARNG) by reason being found medically unfit for retention issued on 10 July 2009 be changed to medical retirement. 2. He states he applied through Defense Enrollment Eligibility Reporting System (DEERS) for retiree benefits and found that he could not get them. The applicant states that on his DA Form 3349 (Physical Profile), block 10, that he had not provided the requested medical documents to support a medical discharge. He assumed that the Army and the Department of Veteran Affairs (VA) were in communications and both had access to his medical records. The VA rated him with 80% disability in May 2008 and subsequently rated him 100% individual unemployable which is now permanent and total. 3. The applicant provides: a. VA letter, dated 9 December 2014, showing his percent disability at 80% paid at 100% – rated permanent and total and individual unemployable. b. VA letter, dated 20 November 2008, decision on his claim for increase in his service-connected compensation, showing the he was assigned disability percentages of 70% for acquired psychiatric disorder diagnosed as PTSD, 10% for chronic tension headaches, 10% for thoracic strain, and 10% for cervical discogenic pain syndrome. c. National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), effective 10 July 2009, showing an honorable discharge by reason of National Guard Regulation (NGR) 600-200, paragraph 8-35i(8), being medically unfit for retention per Army Regulation 40-501. d. Order 191-014, Joint Forces Headquarters – Montana, Office of the Adjutant General, dated 10 July 2009, showing that the applicant was honorably discharged from the ARNG and the Reserve of the Army (USAR) effective 10 July 2009. e. NGB Form 23 (ARNG Retirement Points History Statement), dated 11 August 2009. f. DA Form 3349 (Physical Profile), dated 8 March 2009. g. A VA Medical Center letter, Salt Lake City Health Care System, dated 29 May 2008, showing that the applicant was diagnosed with PTSD and alcohol dependence. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, that the applicant’s request be granted. 2. Counsel states that the applicant was given a permanent profile which should have begun referral into the Integrated Disability Evaluation System (IDES) because the applicant had a medical condition that might not meet retention standards. The referral to IDES never happened and the applicant was separated. The counsel contends that the applicant was improperly discharged and should have been processed for separation though the IDES. 3. Counsel provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 15 September 1999 and served as a motor transport operator in Germany. He was discharged on 15 June 2001 for misconduct for commission of a serious offense (two time use of marijuana) with a service characterization of general under honorable conditions. 3. With a waiver, the applicant enlisted in the MTARNG on 22 January 2004 for a period of 6 years. He enlisted for a health care specialist occupational specialty. 4. During the period from 14 September 2004 to 13 November 2005, he was mobilized and served on active duty in Kuwait and Iraq in support of Operation Iraqi Freedom. He was promoted to the rank of specialist on 1 March 2005. Following demobilization, he continued to serve with his unit in the MTARNG. 5. A VA letter, dated 29 May 2008, provided by the applicant, shows that a psychologist from the VA Salt Lake City Health Care System diagnosed the applicant with PTSD, alcohol dependency, migraine headaches, lumbosacral or cervical strain, intervertebral disc syndrome, and tinnitus. 6. A VA claim decision, dated 20 November 2008, provided by the applicant, shows that he was assigned disability percentages of 70% for acquired psychiatric disorder diagnosed as PTSD, 10% for chronic tension headaches, 10% for thoracic strain, and 10% for cervical discogenic pain syndrome. 7. On 8 March 2009, the applicant was given a permanent S3 (psychiatric) profile by a medical corps colonel from the MTARNG medical detachment. The physical profile, DA Form 3349, box 10, shows that the service member (SM) may fall below medical retention standards in accordance with Army Regulation 40-501, chapter 3, paragraphs 3-33c and 3-41e(1), however, the SM had not provided the requested medical documentation to support a medical discharge. 8. On 13 May 2009, the applicant’s commander was notified by memorandum from the MTARNG Deputy J-1/Director Army Personnel, that the applicant was medically disqualified. The memorandum stated that after review of the applicant’s Army medical records, to include any additional medical documentation provided, the State Surgeon, a colonel, determined that the applicant no longer met the Army medical standards for retention based on the Soldier’s medical condition in accordance with AR 40-501, chapter 3, paragraphs 3-33c and 3-41e(1). The notification memorandum enclosed a form for the applicant to elect the consequent options as follows: a. Discharge from the ARNG and the USAR. b. Duty related medical evaluation board (MEB)/physical evaluation board processing at an active duty military treatment facility (in this case, Fort Carson, Colorado). The applicant would be required to appear before this board. This option would result in one of the following: (1) Return to full military duty with/without limitations. (2) Discharge with/without disability severance pay. (3) Discharge with/without disability rating. c. Appeal the separation recommendation with supporting documentation. d. Transfer to the Retired Reserve, if eligible in accordance with AR 140-10, and agreeing that he understood that the transfer to the Retired Reserve did not entitle him to pay, allowances, or other benefits unless otherwise entitled by law. 9. On or about 8 July 2009, the applicant was notified of the above options and by his check mark and signature with date 8 July 2009, he elected transfer to the Retired Reserve. It is unknown why he did not check the option for an MEB. 10. On 10 July 2009, the applicant was honorably discharged from the ARNG and the USAR by authority and reason of National Guard Regulation 600-200, paragraph 8-35l(8), medically unfit for retention per AR 40-501. 11. On 8 June 2016, an advisory opinion provided by the U.S. Army Office of the Surgeon General (OTSG), Chief, Behavioral Health Division, states that there were no behavioral health records in the applicant’s service treatment record for PTSD but based on the VA disability statement and claim decision provided by the applicant, opined that it appeared that the applicant’s medical conditions may not have been duly considered in his separation. The applicant was provided a copy of the advisory opinion under ex-parte rules. 12. The applicant provided a reply with evidence of VA medical records from 2007 to 2015 indicating a diagnosis of PTSD, severe, chronic. The OTSG, Chief, Behavioral Health Division, reviewed these documents and did not find any evidence that altered the advisory opinion. 13. Subsequent to the 8 June 2016 advisory opinion and the applicant’s responses, additional evidence of record shown above in paragraph 8 was discovered. The OTSG reviewed this new evidence and observed that the applicant’s behavioral health conditions were in fact duly considered during his separation, the applicant was provided appropriate options, and he elected transfer to the Retired Reserve. 14. On 21 July 2016, the MTARNG corrected the applicant’s discharge by issuing new orders, orders 203-011, discharging the applicant from the ARNG and transferring him to the Retired Reserve, effective 10 July 2009, with commensurate "gray area retiree benefits" to which he is entitled prior to age 60 in accordance with the applicant’s election and eligibility for transfer to the Retired Reserve (USAR) as stated in Army Regulation 140-10, paragraph 6-1, as a result of medical disqualification. The orders state that gray area retiree benefits include commissary, post-exchange, and morale welfare and recreation access. The MTARNG will send a copy of the new orders and an NGB Form 22A to correct his NGB Form 22 to show he was transferred to the Retired Reserve. REFERENCES: 1. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers), 15 August 2005, Chapter 6 (Transfer to and from the Retired Reserve), paragraph 6-1 (Eligibility) states, assignment to the Retired Reserve is authorized if the Soldier is medically disqualified, not as a result of their own misconduct, for retention in an active status or entry on active duty regardless of the total years of service completed. Eligible Soldiers must request transfer to the Retired Reserve. 2. National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), 1 March 1997; with National Guard Bureau (NGB) Policy Memorandum, 27 September 2006, subject: Army National Guard Enlisted Personnel Management (NGR 600-200) Implementing Draft (NGB-ARH Policy Memo # 06-053). a. Paragraph 8-32 (Notification and Administrative Board Procedures), subparagraphs a and e, state that all involuntary administrative separations require commanders to notify Soldiers concerning intent to initiate separation procedures. All Soldiers with 6 or more years of total military service on the date of initiation of recommendation for separation have the right to an administrative separation board. The Soldier may waive this right unless the Soldier has completed more than 18 years qualifying service for retired pay. Soldiers who do not meet medical retention standards must be notified by their commander of the intent to separate and afford the Soldier the opportunity to request a waiver for retention per NGR 40-501, or to provide additional information from civilian doctors at their own expense. b. Paragraph 8-35 (Separation/Discharge from State ARNG and/or Reserve of the Army), subparagraph l(8) concerning Soldiers medically unfit for retention per AR 40-501, states that 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 AR 40-501. If the Soldier refuses to report as directed, see paragraph 8-36u below. Commanders who do not recommend retention will request the Soldier's discharge. When medical condition was incurred in line of duty, the procedures of NGR 40-3 will apply. Discharge will not be ordered while the case is pending final disposition. Soldiers separated under this provision will be assigned a reentry eligibility code of 3. c. Paragraph 8-36 (State ARNG Separations), states that all involuntary administrative separations require commanders to notify Soldiers concerning intent to initiate separation procedures per paragraph 8-32. All Soldiers being involuntarily separated will be afforded a reasonable opportunity to provide a written response for consideration by the separation authority. Subparagraph u, concerning failure to obtain required physical per AR 40-501 and NGR 40-501, states that the Soldier will be notified in writing of the requirement to obtain a physical, and given 90 days after the letter is mailed to comply with this requirement. Commander can authorize an extension of up to 60 days for extenuating circumstances. Soldiers separated under this provision will be assigned a reentry eligibility code of 3. 3. Army Regulation 40-501 (Standards of Medical Fitness), 14 December 2007, paragraph 3-33, states a Solder who has anxiety, somatoform or dissociative disorder persistent or recurring symptoms sufficient to require extended or recurrent hospitalization is cause for referral to an MEB. Paragraph 3-41e(1) states that if a Soldier’s medical conditions result in interference with satisfactory performance of duty as substantiated by the Soldier’s commander, this would be cause to refer the Soldier to an MEB. DISCUSSION: 1. By his check mark and dated signature, the applicant elected transfer to the Retired Reserve for which he was eligible in accordance with Army Regulation 140-10, paragraph 6-1 due to being medically disqualified. On 21 July 2016, the MTARNG voided his orders 191-014, dated 10 July 2009, that discharged him from the ARNG and the USAR, and issued new orders 203-011, dated 21 July 2016, effective 10 July 2009, discharging him from the ARNG and transferring him to the Retired Reserve of the USAR as the applicant had requested. However, in spite of these orders, the applicant is not eligible for non-regular retired pay at age 60, and it appears the orders erroneously state that he has authorized gray area retiree benefits which provide commissary, post-exchange, and morale welfare recreation access. 2. The medical treatment facility determined he warranted a permanent S3 profile and the MTARNG State Surgeon's Office determined the applicant was diagnosed with a medical condition that rendered him medically unfit for retention. The VA rated him at 70% disabled for acquired psychiatric disorder diagnosed as PTSD prior to his separation from the ARNG. 3. The applicant was given the option, but it is not certain why he elected transfer to the Retired Reserve instead of a duty related MEB. Based on the July 2016 correction of his discharge orders and NGB Form 22 to transfer him to the Retired Reserve it may appear the applicant has been discharged from the ARNG according to his request and that his discharge is not improper. However, from his application, he appears to have misunderstood what Retired Reserve meant. Notwithstanding this election, his permanent S3 profile and the OTSG opinion strongly support consideration of disability processing. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150002699 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150002699 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2