BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160004082 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: 19 December 2017 DOCKET NUMBER: AR20160004082 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: 19 December 2017 DOCKET NUMBER: AR20160004082 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 records to show he was medically retired instead of being honorably discharged from the Army National Guard (ARNG) with subsequent reassignment to the U.S. Army Reserve (USAR) Control Group (Retired Reserve). 2. The applicant states he was sick all the time and was ordered by the Army to stop working; consequently, he no longer works. 3. The applicant provides: * National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service) for periods ending 29 June 1996 and 15 April 2005 * Orders 156-028, issued by the Hawaii Army National Guard (HIARNG) on 31 August 2005 * memorandum from the HIARNG, dated 5 October 2005, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) * NGB Form 23B (ARNG Retirement Points History Statement), date prepared 11 April 2007 * Orders C09-396937, issued by the U.S. Army Human Resources Command (HRC), Fort Knox, KY, on 24 September 2013 4. The applicant's DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) notes his submission of his Department of Veterans Affairs (VA) files (i.e., medical records) as evidence in support of his request. However, these records did not accompany his application to this Board. 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. Following prior active and Reserve component service, the applicant enlisted in the HIARNG on 16 April 2004. 3. The applicant was honorably discharged from the ARNG on 15 April 2005 and was transferred to the USAR Control Group (Retired Reserve) the following day under the provisions of National Guard Regulation 600-200 (Personnel – Enlisted Personnel Management), paragraph 8-16.1 and 8-27u (Eligibility to Transfer to the Retired Reserve and Discharge and Transfer to the Retired Reserve for Soldiers Who are Not Yet Age 60, respectively). His NGB Form 22 shows he was credited with 20 years, 8 months, and 25 days of total service for retired pay. 4. Orders 156-028, issued by the HIARNG on 31 August 2005, honorably discharged the applicant from the ARNG and assigned him to the USAR Control Group (Retired Reserve) effective 15 April 2005. 5. The applicant was issued his Twenty Year Letter on 5 October 2005, which notified him of his eligibility for retired pay at age 60, having completed the required years of service. 6. Orders C09-396937, issued by HRC on 24 September 2013, announced the applicant's placement of the Retired List effective 23 May 2013, subsequent to reaching 60 years of age. 7. The applicant's available military personnel record is absent of evidence that shows he had any medical condition(s) that warranted his disposition through medical channels via the Physical Disability Evaluation System (PDES). 8. In the processing of this case, an Army Review Boards Agency (ARBA) staff member contacted the U.S. Army Physical Disability Agency to request any available PDES paperwork pertaining to the applicant; however, no documentation was located. 9. The Director, Case Management Division, ARBA, sent the applicant a letter on 12 May 2017 requesting medical documentation in support of his request for a medical retirement. He did not respond. 10. In addition to those documents addressed above, the applicant provides an NGB Form 23B, prepared on 11 April 2007, which shows he attained 20 years, 8 months, and 25 days of creditable service for retired pay. 11. In the processing of this case, an advisory opinion was obtained from the ARBA Senior Medical Advisor on 20 July 2017, who opined: a. The applicant is requesting a change to a medical discharge. A review of the applicant's electronic medical record (Armed Forces Health Longitudinal Technology Application (AHLTA)) revealed encounters, clinical notes, laboratory, and radiology notes. His personnel records were also reviewed as well as the evidence he provided in support of his application. b. Physical Profile Board Proceedings (DA Form 3349) dated 22 December 1981 for asthma and multiple allergies with permanent PULHES-311111 and Code F (no assignment to isolated areas where definitive medical care is not available) and Code U (Patient should not be exposed to feather sleeping bags or pillows. Patient should be allowed to wear facial mask when around dust). c. Statement by the applicant dated 24 April 1984 stated, "I understand the physical profile (311111) dated 22 December 1981 indicating that I have a medical condition which may be a limiting factor in performing the duties in primary MOS 76W2. However, I believe I can perform the duties required of my primary MOS and grade world-wide subject to verification of my commander. I further understand that this statement cannot be withdrawn unless later medical evaluation indicates that the condition has changed." d. Summary of MOS/Medical Retention Board (MMRB) Proceedings dated 25 March 1985 for a board which convened on 19 March 1985: "Individual's permanent medical condition does not prevent him from performing the full range of physical tasks required of his PMOS. Individual's permanent medical condition does not preclude his from performing PMOS physical tasks in a worldwide field environment. Individual participates in physical readiness training. In view of the findings, the board recommends that (Applicant) be retained in his PMOS 76W20." Summary of MOS/Medical Retention Board (MMRB) Proceedings dated 30 May 1985 shows the recommendation was approved and the applicant will be retained and utilized in his PMOS 76W20." e. A limited review of VA records through the JL V (Joint Legacy Viewer) noted 31 problems listed (30 VA-entered) including adjustment disorder with anxiety, headache, diabetes mellitus, hypertensive heart disease without heart failure, angina, chest pain not elsewhere classified (NEC), asthma, chronic low back pain, osteoarthritis, hypertension, hypertensive retinopathy, and others. Those VA records also indicated his currently VA service-connected disability was rated at 100% (percent) overall. f. The applicant met medical retention standards upon separation from active duty in 1987 in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provision set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. While in the USAR and/or the ARNG the applicant continued to meet retention standards through at least 2001 based on the records available at this time. The applicant was retired from the HIARNG in 2005 (for sufficient length of service). g. The applicant's medical conditions were duly considered during medical separation processing. h. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the discharge in his case. 12. A copy of the advisory opinion was forwarded to the applicant on or about 24 July 2017 for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is what the Army did was correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides guidance on the various medical conditions and physical defects that may render a Soldier unfit for further military service, and that fall below the standards required for service. These medical conditions and physical defects, individually or in combination, are those that: significantly limit or interfere with the Soldier's performance of their duties; may compromise or aggravate the Soldier's health or well-being if the Soldier were to remain in the military service; may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual Soldier were to remain in the military service. b. Chapter 10 (ARNG) provides guidance on the basic policies, standards, and procedures for medical examinations and physical standards for ARNG and Army National Guard of the United States (ARNGUS) Soldiers. 3. Army Regulation 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. Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. DISCUSSION: 1. The applicant requests correction of his records to show he was medically retired instead of being honorably discharged from the ARNG with subsequent reassignment to the Retired Reserve. 2. The applicant contends he was ordered to stop working by the Army due to him being sick all the time. However, there is no evidence that shows he was precluded from continuing to perform his duties as an Army Soldier. 3. There is no evidence in the applicant's record that shows he failed to meet retention criteria in accordance with Army Regulation 40-501 nor any evidence that confirms he was diagnosed with having a physical disability that prevented him from reasonably performing his military duties warranting his processing through medical channels for separation. 4. The applicant's NGB Form 22 shows he was honorably discharged from the ARNG and transferred to the USAR Control Group (Retired Reserve) on 15 April 2005 by reason of eligibility to transfer to the Retired Reserve after completing sufficient service for retired pay at age 60. Subsequently, the applicant, at the age of 60, was placed on the Retired List effective 23 May 2013. 5. After a thorough review of all available documentation, the ARBA Senior Medical Advisor found no evidence of a medical disability or condition that would support a change to the discharge in his case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004082 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004082 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2