IN THE CASE OF: BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160004246 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 IN THE CASE OF: BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160004246 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. IN THE CASE OF: BOARD DATE: 28 November 2017 DOCKET NUMBER: AR20160004246 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 honorably discharged due to medical reasons instead of a physical condition. 2. The applicant states: a.  He was injured while serving in an active duty status and he incurred a line-of-duty injury. b.  Item 23 (Authority and Reason) of his National Guard Bureau Form 22 (Report of Separation and Record of Service) needs to be changed from physical condition to line-of-duty injury. c.  He applied for a Department of Veterans Affairs home loan and he was denied due to not having served on active duty long enough which was due to his injury. d.  He was also medically boarded from 1 August 1985 until 1 April 1986 at the Presidio of San Francisco, CA, as shown in item 11 (Remarks) of his DA Form 2139 (Military Pay Voucher). 3. The applicant provides: * DA Form 2-1 (Personnel Qualification Record – Part II) * Standard Form 519 (Radiographic Report), dated 9 May 1984 * Carson Orthopaedic Center examination report, dated 24 July 1985 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 July 1984 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 30 July 1985 * Carson Orthopaedic Center examination report, page 2, dated 23 October 1985 * DA Form 2496 (Disposition Form), dated 3 March 1986 * DA Form 751 (Telephone or Verbal Conversation Record), dated 6 March 1986 * State of Nevada Military Department Office of the Adjutant General, letter, dated 10 March 1986 * DA Form 2139 for the pay period 24 September 1986 to 30 September 1986 * DA Form 3349 (Physical Profile), dated 22 December 1987 * Director, Personnel and Administration, State of Nevada Military Department Office of the Adjutant General, memorandum, dated 6 January 1988, subject: Permanent Profile on (Applicant) * self-authored letter, dated 6 February 1988 * DA Form 2496, dated 6 February 1988 * National Guard Bureau Form 22 for the period ending 15 February 1988 * State of Nevada Military Department Office of the Adjutant General, Order 35-1, dated 7 March 1988 * State of Nevada Military Department Office of the Adjutant General, letter, dated 17 November 1989 * Department of Veterans Affairs Identification Card 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 Oregon Army National Guard on 28 February 1984 for a period of 6 years. 3. His Standard Form 88 (Report of Medical Examination), dated 27 February 1984, shows, in part, he had multiple scars (2 x 3/4" scar just distal to the right olecranon; 2.5" surgical scar in right inguinal region; 1/2" scar on right knee; 1/2" scar over the distal end of the left radius; summary of defects and deficiencies: none; qualified for enlistment. 4. His Standard Form 600 (Chronological Record of Medical Care), dated 1 May 1984, shows, in part, he was seen for a complaint of right knee pain for 4 days and no trauma. His attending physician indicated, "right knee no redness, with swelling, with effusion; patient has limited range of motion due to pain." The applicant was prescribed medication, referred for a physical profile, directed to use crutches for 72 hours, and directed to return to the clinic in 72 hours. 5. Records show the applicant returned to the clinic at Fort Benning, GA, on 3 May 1984 with a complaint of progressively worsening right knee pain for 1 week. His physician noted, "redness, edema discoloration and effusion; also decreased range of motion; pain and tenderness." His physician directed a physical therapy consultation. 6. His Standard Form 513 (Consultation Sheet), dated 4 May 1984, shows he was diagnosed with a knee sprain with possible meniscus tear. 7. His Standard Form 519, dated 9 May 1984, shows the entry, "Pnt [patient] [with] hx [history] of fall on right knee, R/O [rule out] fx [fracture]." No fracture or dislocation was noted. 8. He provided a copy of his Carson Orthopaedic Center examination report, dated 24 July 1985, that shows the following: a.  Examination of the lower extremity showed mild clinical atrophy of the right quadriceps as compared with the left. There was no effusion. No deformity of the knee. He had full range of motion. McMurray's test (circumduction test used to evaluate individuals for tears in the meniscus of the knee) produced a very slight click but no real clunk in the knee. Lachman test (passive accessory movement test of the knee performed to identify the integrity of the anterior cruciate ligament) was negative. There was mild medial and lateral anterior joint line tenderness, but most of the tenderness was in the retro-patellar and peri-patellar areas. He had a somewhat positive apprehension sign. b.  X-rays of the right knee were normal. c.  His patellofemoral joint appeared radiographically intact. There appeared to be a possible non-ossifying fibroma of the other non-symptomatic extremity. Impression: Chondromalacia patella with tendency towards mal-tracking. 9. Records show he completed active duty for training during the period 8 April 1984 through 27 July 1984 and he was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman). 10. His DA Form 2173, dated 30 July 1985, states he injured his right knee during basic training, he was referred to the orthopaedic clinic to examine his knee, and a formal line-of-duty investigation was not required. 11. He provided a letter to his Congressional representative from The Adjutant General, State of Nevada Military Department, dated 10 March 1986, advising his State representative that he would receive an in-the-line-of-duty determination, his medical bills would be paid as a result of his injury, and he would be placed on active duty in an incapacitation status which would allow him to receive back pay from 24 July 1985 to the present date. Additionally, he would continue to receive full military pay until his medical condition was resolved. 12. His DA Form 2173, dated 13 March 1986, shows his injury was determined to be in the line of duty. 13. On an unknown date, his commander certified he was incapacitated from performing the assigned duties of his MOS or attending training during the period 24 September 185 to 14 April 1986. 14. He provided a copy of his DA Form 2139 for the period 24 September 1986 to 30 September 1986 showing he was authorized incapacitation pay for the period 24 through 30 September 1986 and a formal line-of-duty investigation was approved in March 1986. 15. A Carson Orthopaedic Center examination report extract, dated 29 September 1987, shows the entry "(applicant) is still having trouble. Most of it is centered behind his kneecap. The arthrogram was negative. This examination report extract also contained an entry, dated 7 October 1987, that shows the entry "The knee now looks good. The bone scan is normal. His pain is under the patella with motion and along the lateral femoral condyle area. Bone scan is coming up this week. I will see him next week." 16. His DA Form 3349 (Physical Profile), dated 22 December 1987, shows his different levels of functional capacity in six factors (PULHES) with an assigned permanent rating of "3" in the lower extremities factor. 17. He provided a memorandum from the Director, Personnel and Administration, State of Nevada Military Department Office of the Adjutant General, dated 6 January 1988, subject: Permanent Profile on (Applicant), stating a permanent profile rating of "3" requires the following actions: a.  notifying the applicant and removing him from a line-of-duty and incapacitation status effective 23 December 1987; and b.  changing his MOS to accommodate his permanent "3" profile rating or transferring him to a unit that has an MOS which would accommodate his physical limitations if an MOS was not available within his unit, or discharging him. c.  The applicant received incapacitation pay from 10 June 1987 through 31 December 1987 and recoupment procedures had to be initiated immediately due to the effective date of termination. 18. He provided a copy of his self-authored letter, dated 6 February 1988, wherein he requested discharge from the Army National Guard due to his permanent physical profile rating, having to attend a lengthy school to become MOS qualified, and the conflict of keeping a full-time job. 19. On 6 February 1988, his commander recommended approval of the applicant's discharge due to his permanent physical profile rating and the requirement to transfer him to another unit, be cross-trained, and attend a service school to become MOS qualified. 20. On 15 February 1988, the applicant was honorably discharged accordingly and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his military service obligation. 21. State of Nevada Military Department Office of the Adjutant General, Order 35-1, dated 7 March 1988, honorably discharged him from the Army National Guard and transferred him to the U.S. Army Reserve Control Group (Annual Training) effective 15 February 1988. 22. His National Guard Bureau Form 22 shows he completed 2 years, 10 months, and 25 days of net service and he had 1 year and 23 days of prior Reserve Component service. Item 23 shows the authority and reason for his separation as Nevada Adjutant General Orders 35-1, dated 7 March 1988; National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-26g, Physical Condition. 23. He provided a copies of his U.S. Department of Veterans Affairs identification card and a letter to the Department of Veterans Affairs from the Deputy Chief of Staff for Personnel and Administration, State of Nevada Military Department Office of the Adjutant General, dated 17 November 1989, stating he was referred to this agency for assistance in resolving a continuing medical problem and: a.  He injured his right knee while attending basic combat training with the Active Army at Fort Benning, GA, in May 1984. b.  A line-of-duty determination was never done and eventually (after about a year) a line-of-duty investigation was completed and he was referred to Letterman Army Hospital for medical evaluation. c.  He was discharged from the National Guard in February 1988 due to his injury and he continued to experience problems with his knee since his discharge. d.  His application for compensation had been completed as best as possible. 24. Item 4 (Assignment Considerations) of his DA Form 2-1 shows the entries: * knee pain – no running, jumping, or marching * assignment limitations are to accommodate the permanent physical profile rating of "3" 25. On 27 February 1990, he was honorably discharged from the U.S. Army Reserve upon completion of his military service obligation. 26. On 16 May 2017, the Army Review Boards Agency Senior Medical Advisor rendered an advisory opinion wherein he opined the applicant's medical conditions were duly considered during his 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 applicant's discharge in this case. The applicant, due to civilian employment requirements, was unable to commit the time required for MOS reclassification and retraining to remain in the Army National Guard. 27. On 18 May 2017, a copy of the advisory opinion was provided to the applicant for review and he was given an opportunity to comment and/or provide additional evidence. He did not respond. REFERENCES: National Guard Regulation 600-200, in effect at the time, provided guidance for the management of enlisted personnel in the National Guard. a.  Paragraph 8-26g provided for the separation of Soldiers for other designated physical or mental conditions as approved by the National Guard Bureau. b.  Table 8-2 (Preparation of the National Guard Bureau Form 22) stated to enter the authority cited in the discharge orders and/or the applicable reason per National Guard Regulation 600-200 in item 23. DISCUSSION: 1. Despite his knee condition, the applicant successfully completed basic training, advanced individual training, and he was awarded MOS 11C. 2. He was assigned a permanent physical profile rating for his knee condition which rendered him unable to perform his MOS. Records show he met medical retention standards and he was given the option to reclassify into another MOS. However, he elected separation because he was unable to commit the time required for MOS reclassification and retraining to remain in the Army National Guard due to civilian employment requirements. 3. His National Guard Bureau Form 22 was properly prepared in accordance with the governing regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004246 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004246 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2