BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160002183 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: 17 October 2017 DOCKET NUMBER: AR20160002183 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: 17 October 2017 DOCKET NUMBER: AR20160002183 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 his honorable discharge from the Army National Guard (ARNG) be changed to a medical retirement. 2. The applicant states: a. Two months before retiring from the ARNG, he was granted a 60-percent disability rating from the Department of Veterans Affairs (VA) in September 2009. As of 3 years ago, his disability rating was increased to 100 percent due to post-traumatic stress disorder (PTSD). b. At the time of his reenlistment, the ARNG knew about his disability claim and denied his reenlistment. They didn’t tell him he could file for a medical retirement. They also don’t have the paperwork showing they refused his reenlistment because of his disability percentage. 3. The applicant provides: * memorandum from the Deputy Chief of Staff, Department of Military Affairs, dated 13 January 2015 * memoranda from the New Mexico ARNG, dated 16 December 2009 and 8 November 2009 * VA documentation * VA medical records (107 pages) 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. Having prior active service in the U.S. Navy from 26 October 1987 to 25 October 1997 and inactive service in the Naval Reserve, the applicant enlisted in the ARNG on 24 November 2003. 3. He was ordered to active duty on 10 August 2005 in support of Operation Iraqi Freedom. He served in Kuwait/Qatar from 20 November 2005 to 14 November 2006. He was released from active duty on 17 December 2006. 4. His DA Forms 2166-8 (Noncommissioned Officer Evaluation Report) for the periods ending 1 December 2006 through 30 November 2007, 1 December 2007 through 30 November 2008, and 1 December 2008 through 23 November 2009 show: * he passed the Army Physical Fitness Test * he was rated "Fully Capable" for overall potential for promotion and/or service in positions of greater responsibility by his raters * he was rated "Successful-2" for overall performance and "Superior-2" for overall potential for promotion and/or service in positions of greater responsibility by his senior raters 5. On 8 November 2009, he requested discharge from the ARNG based on completion of 20 years of service. His request was approved on 8 November 2009. 6. On 23 November 2009, he was honorably discharged from the ARNG and transferred to the Retired Reserve. 7. There is no evidence showing he was diagnosed with any medical or mental health condition prior to his discharge from the ARNG. 8. He provided a VA Rating Decision, dated 4 October 2010, showing he was granted service connection for: * PTSD – 30 percent (effective 28 September 2009) * degenerative disc disease, strain lumbar spine – 20 percent * right lower extremity, radiculitis – 10 percent * left lower extremity, radiculitis – 10 percent * erectile dysfunction – 0 percent * bilateral hearing loss – 0 percent 9. He also provided a letter from the VA, dated 9 July 2013, showing his assigned percentage for PTSD was increased to 100 percent effective 24 September 2012. 10. He provided a memorandum from the Deputy Chief of Staff, State of New Mexico, Department of Military Affairs, dated 13 January 2015, responding to his request to change his discharge to a medical discharge. The memorandum states: * the applicant requested in writing on 8 November 2009 to be discharged and transferred to the Retired Reserve due to completing 20 years of service * it was processed through his chain of command * an order granting this request was published on 17 December 2009 with and effective date of 23 November 2009 * there are no supporting documents provided that a medical issue with the applicant existed * absent additional evidence there is no reason to change the type of discharge 11. An advisory opinion was rendered by the Army Review Boards Agency Senior Medical Advisor, dated 16 March 2017, wherein he stated: a. The available record does not reasonably support PTSD or another boardable behavioral health condition existed at the time of the applicant's military service. Per VA documentation, he was service connected for PTSD in 2010. b. He met medical retention standards for hearing loss, low back pain (with or without radicular symptoms), tinnitus (unclear if present at that time), erectile dysfunction (unclear if present at that time) and history of snoring. c. His medical conditions were duly considered during medical separation processing. d. 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 his discharge in this case. 12. A copy of the advisory opinion was provided to the applicant for comment and/or rebuttal. He responded and stated he was awarded a disability rating from the VA two months before his retirement from the ARNG. The ARNG was aware of this VA claim and refused to allow him to reenlist or send him to a medical board. He provided a VA Rating Decision, dated 4 October 2010, showing he was granted service connection for PTSD (30 percent) effective 28 September 2009. 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. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 2. Title 10, U.S. Code, chapter 61, provides for 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 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION: 1. Per the applicant's request, he was honorably discharged from the ARNG on 23 November 2009 and transferred to the Retired Reserve. 2. There is no evidence of record showing a medical condition rendered him unable to perform his duties. 3. The advisory opinion provided by the Army Review Boards Agency Senior Medical Advisor states his medical conditions were duly considered during medical separation processing and there was no evidence of a medical disability or condition. 4. He requests correction of his military records to show he was medically retired because he was granted a 60-percent disability rating from the VA in September 2009, two months before his retirement from the ARNG, and subsequently awarded a 100-percent disability rating for PTSD. The evidence shows in 2010 he was granted a 30-percent disability rating for PTSD effective 28 September 2009. It appears his overall combined rating was 60 percent for his medical conditions. 5. He was granted a 100-percent disability rating for PTSD by the VA. The rating action by the VA does not demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002183 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002183 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2