BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160001630 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: 1 June 2017 DOCKET NUMBER: AR20160001630 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: 1 June 2017 DOCKET NUMBER: AR20160001630 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, correction of his military records to show he was medically separated from the Tennessee Army National Guard (TNARNG) instead of having been discharged due to misconduct. 2. The applicant states while training to go to Iraq, he was sent back home before reaching Iraq. This was due to injuries that manifested to a compensable degree. He believes in God, country, and the Department of the Army as well as the Army National Guard. He is grateful for the opportunity to serve his country. 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 initially enlisted in the FLARNG on 12 August 1989 and held military occupational specialty (MOS) 88M (Motor Transport Operator). 3. After a series of unexcused absences, he was discharged from the FLARNG as an unsatisfactory participant on 8 July 1992 with a general discharge. 4. He enlisted in the TNARNG on 22 May 2003 and trained in MOS 19K (M-1 Tank Crewman) but failed to achieve course standards. He reverted back to his previous MOS of 88M. 5. On 1 June 2004, he was ordered to active duty as a member of his unit for a period of 545 days in support of Operation Iraqi Freedom. He was ordered to report to the National Guard Armory in Jamestown, TN, and then to Camp Shelby, MS, for training. 6. On 10 July 2004, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of military Justice for disrespectful behavior toward a commissioned officer. His punishment consisted of reduction to E-1, forfeiture of pay, extra duty, and restriction. 7. The complete facts and circumstances surrounding his discharge from the ARNG are not available for review with this case. However, his records contain: a. Orders 343-100, issued by the TNARNG on 8 December 2004, ordering his discharge in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 1-26e(2), due to acts or patterns of misconduct, with an under honorable conditions (general) characterization of service. b. National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) that shows he was discharged from the TNARNG on 12 October 2004 in accordance with NGR 600-200 due to acts or patterns of misconduct, with an under honorable conditions (general) characterization of service. He completed 1 year, 4 months, and 21 days of inactive service. 8. On 15 November 2016, a staff member of the Army Review Boards Agency (ARBA) corresponded with the applicant and requested he provide his Army medical records and any other records that support his stated issue. He did not respond. 9. His case was reviewed by the ARBA senior medical advisor who rendered an advisory opinion on 21 December 2016. The senior medical stated: a. He reviewed the applicant's Report of Medical History (Standard Form (SF) 93) dated 12 September 1989 with unremarkable clinical history (no medications, tonsils removed age 6, failed ASVAB for Army (scored 37)). He also reviewed the Report of Medical Examination (SF 88) dated 12 September 1989, with unremarkable clinical evaluation, PULHES of "1-1-1-1-1-1," qualified for service. He further reviewed the Medical Examination Statement of Option (DA Form 2496), dated 2 February 1990, wherein the applicant indicated “I do not desire a medical examination)” and signed; reviewed by provider who noted “medical examination is not required.” His review also included a Report of Medical History (DD Form 2807-1), dated 17 April 2003, for enlistment, with unremarkable history (no medications, stitches for right wrist laceration age 6); and Report of Medical Examination (DD Form 2808), dated 17 April 2003 with clinical evaluation unremarkable (tattoos; cholesterol - 264 (elevated), PULHES of "1-1-1-1-1-1," qualified for service. b. He further reviewed the applicant’s electronic medical record (AHLTA) and that review revealed no clinical encounters (note: AHLTA implementation began in 2003). The applicant was mobilized in 2004 for training at Camp Shelby (there was no AHLTA available there for clinical documentation). No clinical notes. Lumbar spine x-ray series (2 July 2004) done at Camp Shelby was normal. Laboratory studies on 18 and 19 June, 31 July and 4 August 2004 were all unremarkable (varicella zoster virus antibody IgG, sickle cell screen, glucose-6- phosphta dehydrogenase (G6PD), HIV, RPR (rapid plasma reagin) chlamydia + gonococcus DNA probe). A limited review of VA (Veteran’s Administration) records through the JLV (Joint Legacy Viewer) with 57 VA entered problems including chronic low back, chest & neck pain; degenerative joint disease & pain of multiple sites, gastroesophageal reflux disease, morbid obesity, major depression, substance abuse/dependence (opioid, cocaine, alcohol, tobacco), cocaine-induced psychosis, schizoaffective disorder, type 2 diabetes, hyperlipidemia and others. The applicant is rated 100 percent service-connected. c. Based on the review, the senior medical advisory opines that the available record does not reasonably support post-traumatic stress disorder or another boardable behavioral health condition(s) existed at the time of the applicant’s military service and his medical conditions, if any, but not applicable in his case, did not fail medical retention standards in accordance with Army Regulation (AR) 40-501, warranting a separation through medical channels. d. The applicant met medical retention standards for low back pain & hyperlipidemia (elevated cholesterol) in accordance with chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. The applicant’s medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 10. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit comments and/or a rebuttal. He did not respond. REFERENCES: 1. AR 635-40 establishes the Army PDES 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 medical evaluation boards, which are 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 AR 40-501. 2. AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 3. NGR 600-200 prescribes the criteria, policies, processes, procedures and responsibilities to classify; assign; utilize; transfer within and between states; and separate ARNG enlisted Soldiers. Paragraph 1-26 provides for the separation of enlisted Soldiers in the ARNG for acts or patterns of misconduct. 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 at less than 30 percent. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. 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 awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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. DISCUSSION: The applicant served in the TNARNG from 22 May 2003 to 12 October 2004. Around June 2004, he was ordered to active duty in support of Operation Iraqi Freedom but he never deployed. He was discharged from the ARNG for misconduct: a. Under the laws governing the Army disability system, regardless of the Soldier’s component, 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: 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 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. Here, there is no evidence that shows he sustained an injury or an illness, that an injury or any other medical condition or illness was diagnosed during a medical examination, that he was determined not to have met the medical retention standards of AR 40-501, or that any injury or illness was found unfitting. c. Even if the VA awarded him service-connected disability compensation, an award of a rating by another agency does not establish error by the Army. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001630 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001630 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2