IN THE CASE OF: BOARD DATE: 22 November 2016 DOCKET NUMBER: AR20150011945 BOARD VOTE: ___x_____ __x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 22 November 2016 DOCKET NUMBER: AR20150011945 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his NGB Form 22 to show he was honorably discharged from the Georgia Army National Guard effective 21 August 2002 by reason of physical disability with severance pay in accordance with the approved physical evaluation board determination. __________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: 22 November 2016 DOCKET NUMBER: AR20150011945 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 to show he was medically discharged from the Georgia Army National Guard (ARNG). 2. The applicant states his honorable discharge from the Georgia ARNG should be changed to a medical discharge. 3. The applicant provides: * two applications * self-authored letter, dated 26 May 2015 * Medical Evaluation Board (MEB) * Physical Evaluation Board (PEB) * DD Form 214 (Report of Separation from Active Duty) for the period ending 6 April 1979 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 22 April 1991 * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 21 August 2002 * Honorable Discharge Certificate, dated 21 August 2002 * Georgia ARNG Orders 247-032, dated 4 September 2002 * ARNG Retirement Points History Statement, dated 11 April 2003 * service medical records 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 Georgia ARNG on 13 November 1978. He was promoted to sergeant effective 1 November 1990. 3. On 21 March 2002, an MEB found him unfit based on diagnoses of: * chronic neck pain (moderate and frequent) status post C6-C7 foraminotomy with residual left upper arm weakness and decreased grip strength * bilateral knee pain (moderate and frequent) * right groin pain status post right inguinal hernia repair (slight and occasional) * chronic low back pain (slight and occasional), nonradicular 4. The MEB recommended his referral to PEB. On 22 April 2002, he appealed the MEB findings and recommendation. On 28 May 2002, his appeal was considered and the original findings and recommendation were confirmed. 5. On 3 June 2002, a PEB found him physically unfit due to diagnoses of: * chronic bilateral knee pain – rated as slight, not requiring daily narcotic therapy/frequent * chronic neck pain, right groin pain, and low back pain – rated as slight, not requiring daily narcotic therapy/frequent – not the proximate result of performing duty – no causal relationship between military duty and present condition 6. The PEB recommended a 10-percent disability rating and his separation with severance pay. On 24 June 2002, he did not concur with the findings and recommendation of the PEB and demanded a formal hearing of his case. On 27 June 2002, he concurred with the findings of the PEB and withdrew his request for a formal hearing. 7. On 18 July 2002, the U.S. Army Physical Disability Agency approved the PEB findings and recommendation. 8. His NGB Form 22 shows he was honorably discharged from the Georgia ARNG on 21 August 2002 for failure to meet Army body composition standards under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26l. 9. Georgia ARNG Orders 247-032, dated 4 September 2002, discharged him from the ARNG and as a Reserve of the Army effective 21 August 2002 under the provisions of National Guard Regulation 600-200, paragraph 8-27l. 10. He provided a self-authored letter, dated 26 May 2015, wherein he states: a. He received an honorable discharge in August 2002. He was under the impression he received a medical discharge due to service-related injuries he received on 3 November 1997. b. He has been under the care of a Department of Veterans Affairs physician since his discharge. He continues to experience pain and sometimes unbearable suffering. He is also under the care of a pain clinic physician. 11. In the processing of this case an advisory opinion was obtained from the U.S. Army Physical Disability Agency Legal Advisor who states: a. The applicant's MEB was completed on 21 March 2002 with the following listed conditions: chronic neck pain, bilateral knee pain, right groin pain status post right inguinal hernia repair, and chronic low back pain. The only condition that actually had a completed line-of-duty determination was the knee pain. There are no other line-of-duty determinations for any of the other conditions and the evidence supports that none of the other conditions were incurred or aggravated while entitled to basic pay or were incurred during ARNG duties. The only conditions his commander referred to as affecting his performance of duty were his knee conditions. b. An informal PEB found the applicant unfit for all listed conditions, but only the knees were considered service-incurred and compensable. The applicant was to be separated with severance pay. He initially nonconcurred and requested a formal hearing on 24 June 2002, but he changed his mind and accepted the PEB findings and waived his right to a formal hearing on 27 June 2002. c. NGB (should read the Georgia ARNG) issued an NGB Form 22 on 21 August 2002, separating the applicant from the ARNG. The form cited "failure to meet Army body composition standards" as the reason for his separation. It is unknown whether such a classification properly cites the PEB findings of unfitness and separation with severance pay. d. The PEB findings were supported by a preponderance of the evidence; were not arbitrary or capricious; and were not in violation of any statute, directive, regulation, or policy. e. The applicant has not provided any evidence of any error or injustice regarding the MEB or PEB findings. f. If there is an error in the applicant's NGB Form 22, the Board can request that NGB address that issue. 12. A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal. On 28 July 2016, he responded and provided a Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim), dated 28 July 2016, which states the applicant requests recognition of the other injuries as stated in the PEB (apparently he means MEB) as follows: * chronic bilateral knee pain (moderate and frequent) * chronic neck pain (moderate and frequent) status post C6-C7) * right groin pain status post right inguinal hernia repair * chronic low back pain (slight and occasional, nonradicular) * upper arm pain with decreased grip and strength 13. He requests acknowledgement of the injuries and a medical discharge. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. The unfitness must be of such a degree that a Soldier is unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his or her employment on active duty. 2. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 3. Title 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. 4. Paragraph 8-26l of National Guard Regulation 600-200 (Enlisted Personnel Management), in effect at the time, provided for administrative separation for failure to meet Army body composition standards. 5. Paragraph 8-27l of National Guard Regulation 600-200, in effect at the time, provided for placement on the Permanent Disability Retired List. DISCUSSION: 1. The applicant's contention that he should have been medically discharged from the Georgia ARNG appears to have merit. 2. Notwithstanding his NGB Form 22 and Georgia ARNG discharge orders showing he was honorably discharged on 21 August 2002 for failure to meet Army body composition standards, the evidence shows he had a disability separation with severance pay approved on behalf of the Secretary of the Army on 18 July 2016, a month before the Georgia ARNG separated him. R20150011945//NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011945 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011945 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2