BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20150019059 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20150019059 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. BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20150019059 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 separated for medical reasons. 2. The applicant states his record is incorrect because at the time of his discharge, he was unable to perform his military duties. He was unable to deploy to Iraq a second time; therefore, the Louisiana Army National Guard (LAARNG) should have medically discharged him. 3. The applicant 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 LAARNG on 16 January 1996. He continued his service in the LAARNG through a series of reenlistments and extensions, until he was honorably discharged on 6 September 2011. 3. His National Guard Bureau Form 22 shows he was discharged at his expiration term of service (ETS) date. This form further shows he was assigned a reenlistment eligibility (RE) code of "RE-1." 4. There is no evidence in the applicant's military records, such as a physical profile or Military Occupational Specialty/Medical Retention Board Proceedings, which shows he was unable to perform his military duties due to physical disability. 5. A letter from the Army Review Boards Agency (ARBA) Case Management Division, dated 12 September 2016, informed the applicant that medical records and/or other evidence supporting his contention were necessary for consideration of his request. The applicant failed to respond. 6. During the processing of this case, a medical advisory opinion was obtained from the ARBA Senior Medical Advisor who states a review of the applicant's electronic medical records and Department of Veterans Affairs records revealed no evidence of a medical disability or condition that warrants a change of his reason for separation. 7. The medical advisory opinion was forwarded to the applicant to allow him the opportunity to provide additional evidence, comments, or a rebuttal. The applicant did not respond. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, the individual must be unable to perform the duties of his or her office, grade, rank, or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical 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 or her office, grade, rank, or rating. It provides for a medical evaluation board that is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3. 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 service. a. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the Physical Disability Evaluation System for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. b. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. 3. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria for enlistment and processing into the Regular Army, Army Reserve, and ARNG. This regulation provides that prior to discharge or release from active duty, individuals will be assigned reentry codes based on their service records or the reason for discharge. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. The code "RE-1" applies to persons completing their term of service who are considered qualified to reenter the Army. 4. Army Regulation 15-185 (ABCMR), paragraph 2-9, states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends he should have received a medical discharge from the LAARNG. 2. There is no evidence in the applicant's available military records and he failed to provide evidence that shows he was unable to perform his duties due to a physical disability. There is also no evidence indicating he was determined to be unfit for retention prior to his ETS date. At the time of his separation, he was assigned an RE code of "RE-1," indicating he was fully qualified to reenter military service. 3. The applicant failed to provide evidence supporting his contention that he should have been separated for medical reasons. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150019059 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019059 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2