ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20160012731 APPLICANT REQUESTS: reconsideration of the following: * reevaluation of his discharge * restoration of his due process rights to a Medical Review Board (MRB) or hearing before the Physical Evaluation Board (PEB) * personal Appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Law Office of X___ X___, dated 16 June 2016 * Authored handwritten facts to consider, undated * Medical determination on applicant with redacted information, dated 20 September 1991 * Memorandum for discharge of applicant with redacted information, dated 24 September 1991 * Letter from Case Management Division (CMD), dated 20 August 2009 * Letter to Senator X____, dated 7 December 2010Letter to Senator X__, dated 9 May 2011 * Letter from Army Board for Correction of Military Records (ABCMR), dated 25 July 2011 * Letter from CMD, dated 26 July 2016 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090003497 on 1 October 2009. 2. The applicant’s attorney states that he is assisting the applicant in a rather complicated effort related to his discharge from the Army National Guard (ARNG). a. The applicant was separated from the ARNG on 23 October 1991 with an honorable discharge for medical reasons. The medical code used was for amputation of upper extremity. The early discharge meant that he could not serve to retirement. His medical issue was not forwarded to a medical review board (MRB) to afford him the opportunity to contest his discharge. That is significant because the applicant still has all of his arms, legs, fingers and toes. He was summarily discharged medically for an amputation that didn't happen. b. The ABCMR previously reviewed the applicant’s issues, him having proceeded pro-se, in 2009, case AR20090003497. The Board determined that a clerical error was made in the discharge code, and that the proper code should have reflected the applicant having a lost range of motion in his wrist. While that solved the amputation question, the ABCMR did not address the fact that the applicant’s discharge never went before the MRB. The ABCMR appears to have concluded that lack of evidence from any MRB means the applicant is unable to refute the doctor's conclusion about wrist range of motion. Simultaneously the doctor, however, also did not note the manner of testing in medical records to conclude the range of motion as service disqualifying. ABCMR simply presumed the range of motion determination as accurate, despite the applicant never having a chance to challenge accuracy of it at a MRB in 1991, a MRB denied because the discharge was for amputation that didn't happen. c. The applicant seeks re-evaluation of his discharge and restoration of his due process rights to a MRB or hearing before the physical evaluation board (PEB). However, acknowledging the applicant is now well past any reenlistment age, and he would likely be immediately discharged again should he prevail in administrative proceedings, Attorney X___ X___is also open to negotiations that might make the applicant whole alternative to reenlistment or protracted litigation. 3. The applicant provides: a. Letter from the Law Office of X___ X___, explaining the medical discharge of his client. Details of the letter stated above in number 2. b. Hand written facts to consider laying out timelines that led to the applicant’s discharge. c. Medical determination on the applicant with redacted information, dated 20 September 1991. d. Memorandum for discharge of the applicant with redacted information, dated 24 September 1991. Concurrence with Colonel (COL) X___ X___ and directed that the applicant be discharged in accordance with (IAW) Army Regulation (AR) 40-501 (Standards of Medical Fitness), paragraph 3-12a (Upper extremities/Amputations). e. Letter from CMD to the applicant, dated 20 August 2009, notifying thim that the National Guard Bureau (NGB) returned his application without action due to the medical information provided by the applicant was insufficient for NGB to render an advisory opinion. f. Letter from Joint Force Headquarters Wisconsin Army National Guard (WIARNG) to Senator X__, dated 7 December 2010, notifying her office that the WIARNG, conducted a comprehensive review of the applicant’s military records and has determined that the WIARNG findings remained unchanged. The applicant was properly discharged. g. Letter from Joint Force Headquarters WIARNG to Senator X__, dated 9 May 2011, notifying her office that the WIARNG are simply unable to comply. In accordance with Army Regulations and policies, the medical findings of the state surgeon that resulted in the applicant’s discharge did not warrant a medical evaluation board (MEB). Therefore, there are no MEB documents to present. h. Letter from ABCMR to the applicant, dated 25 July 2011, stating the applicant did not specifically state what the error is or what corrective action you seek, it appears that you are requesting, in effect, reconsideration of your earlier request that your October 1991 discharge from the WIARNG be voided. The records show this case was previously considered by the ABCMR on 1 October 2009 under Docket Number AR20090003497. i. Letter from CMD to the applicant, dated 26 July 2016, notifying him that his current application has been received and assigned case number AR20160012731. 4. The applicant's military records are not available for review in this case. In response to a 22 August 2007 request, the applicant was informed that an exhaustive search was undertaken to locate his military records which were necessary for the processing of his application; however the records could not be located. He was also informed that since this Board is not an investigative body and since there is a presumption that what the Army did in his case was correct, his application was being returned without action. There now are some documents contained in a reconstructed record provided by the applicant through his Member of Congress to conduct a fair and impartial review of this case. a. The applicant's NGB Form 22 (Report of Separation and Record of Service) shows that, with prior Reserve Component and active Federal service, he enlisted in the WIARNG on 12 June 1980. This form also shows that, at the time of his discharge from the WIARNG: * he held various military occupational specialties (MOS), to include 11C (Indirect Fire Infantryman), 11B (Infantryman), and 95B (Military Policeman) * he was assigned to Headquarters and Headquarters Company, 2nd Battalion, 127th Infantry b. His NGB Form 22 also shows he served through several extensions and/or reenlistments and he was honorably discharged on 23 October 1991. This form further shows he completed 11 years, 4 months, and 12 days of ARNG service during this period. Item 23 (Authority and Reason [for separation]) shows the entry National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26y - Medically Unfit for Retention Standards of Chapter 3, AR 40-501). c. His available/reconstructed records contain an endorsement a memorandum, and a discharge order as follows (1) An endorsement, dated 20 September 1991, addressed from the Office of The Adjutant General (TAG) to the Director of Military Affairs, WIARNG, and signed by a health systems specialist, showing the State Surgeon reviewed the applicant's medical documents and recommended a medical discharge in accordance with paragraph 3-12a [sic] of AR 40-501. (2) A memorandum, dated 24 September 1991, from the Director of Personnel and Administration, WIARNG, through the applicant's intermediate and senior commanders, to the applicant's immediate commander, wherein the Director of Personnel states that he concurs with the finding of medical unfitness and directs the applicant's discharge in accordance with paragraph 3-12a [sic] of AR 40-501 and also paragraph 8-26y of NGR 600-200, effective 23 October 1991. (3) Orders 212-030, dated 28 October 1991, directing the applicant's honorable discharge from the ARNG, effective 23 October 1991,under the authority of paragraph 8-26y of NGR 600-200. d. Limited medical records show the applicant hurt his right wrist on 28 April 1989, while working at his civilian job as a custodian with the U.S. Postal Service. He underwent a scaphocapitate fusion. One unidentified medical document provided by the applicant shows the following chronology: (1) 29 October 1990, a pin is removed from the applicant's hand in the emergency room. "His wrist looks good." Return to work but no lifting more than 5 pounds with his right hand for the next 4 weeks. He is using a wrist brace in the meantime. (2) 29 November 1990, he is doing well with his wrist. X-rays show further healing of his intracarpal fusion. No impairment will be made until he returns to the office in another 2-3 months. (3) 6 February 1991, he was doing well with his hand until he was at the Reserve weekend training. Even though he had work restrictions for not lifting any more than 10 pounds with his right hand, his superior officer, a lieutenant, told him to go ahead and lift it anyway. As he was lifting some shell casing which weighed 35 pounds, he had more than wrist pain. It is believed that the applicant re-injured his wrist when his supervisor told him to something in spite of his work restrictions. He further related that he showed the lieutenant a work restriction from his doctor; however, he tore them up and threw them into a basket. Further examination revealed that "X-rays show complete consolidation between the scaphoid and lunate." (4) 7 March 1991, his wrist is better and he has reasonably good motion; still wearing his brace part time. However, he does have gaposis between the scapholunate, possible nonunion. Clinically he is doing well. The doctor opined "Lifting when he was on Reserves has definitely aggravated his wrist problem." (5) 1 May 1991, he has a nonunion between his lunate and the scaphoid and capitates; however, not greatly symptomatic." He was instructed not to lift over 20 pounds with his right arm, with no other restrictions. (6) 21 August 1991, he has quite good motion. A little crepitus is noted otherwise his wrist looks good. e. Medical reevaluation for the U.S. Department of Labor was completed at Orthopedic Systems, S.C., Neenah, WI, on 28 March 1995. The report states the applicant continues to work, and he smokes a pack of cigarettes and drinks 2 pots of coffee a day. The report repeats the applicant's allegation that his WIARNG chain of command forced him to perform work against the advice of his doctor, causing him to aggravate his wrist condition. This led to his discharge for failure to meet medical fitness standards and he lost his pension after 17 years of service. During clinical examination, the applicant presented as healthy with no evidence of [right side] muscular atrophy or wasting. Although left side dominant, both forearms measured 11 inches and he had full range of motion of the fingers and thumbs, elbows and shoulders. The doctor noted the applicant "demonstrated a good deal of exaggerated (right wrist] pain behavior and how he was essentially a one-armed man. Yet, the appearance of the skin as well as the muscle bulk [between right and left arms] was approximately equal…rather substantially betraying this contention." The doctor also indicated the applicant "displayed an obvious lack of effort [on strength testing] in the right upper extremity compared to the left, thus invalidating attempts to determine strength. X-rays revealed no evolutionary degenerative changes or carpal migration and thus a stable condition. f. On 12 March 2008, by letter, TAG, WIARNG, notified the applicant that a review of his records showed the 24 September 1991, memorandum from the Director of Personnel and Administration was incorrect as it showed he was being discharged in accordance with paragraph 3-12a (amputation) of AR 40·501 and that it should have showed paragraph 3-12b (upper extremity - range of motion). TAG further notified the applicant that appropriate action would be taken to correct his authority and reason for separation. g. On 1 July 2009, an advisory opinion was obtained from the Chief, Personnel Division, NGB. The advisory official recommended disapproval of the applicant's request regarding his discharge based on the lack of documentation. The applicant failed to provide a copy of his MOS Medical Retention Board (MMRB) conducted at the State level. The advisory official further stated that NGB personnel were able to locate: (1) A copy of WIARNG Orders 212-030, dated 28 July 1991, showing the applicant was honorably discharged to the Retired Reserve on 23 October 1991. (2) A copy of his NGB Form 22 showing the applicant was discharged on 23 October 1991. (3) A copy of a WIARNG memorandum, dated 24 September 1991, signed by the Director of Personnel and Administration, showing the director concurred with the applicant's medical status. (4) A copy of a letter, dated 12 March 2008, from TAG showing the WIARNG would amend the applicant's discharge order to show the correct authority and reason for separation. 5. On 20 August 2009, the applicant was provided with a copy of this advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. He subsequently submitted a letter stating that he is unaware that any MMRB was conducted and that at the time he was verbally told he would be discharged under the provisions of paragraph 3-12 of AR 40-501. 6. On 14 December 2018, the ARBA senior medical advisor rendered an advisory opinion in the applicant’s case. The advisor a. Does the available record reasonably support PTSD (post-traumatic stress disorder) or another boardable behavioral health condition(s) existed at the time of the applicant’s military service? No. b. Did this condition(s) fail medical retention standards IAW AR 40-501, warranting a separation through medical channels? No, not applicable. c. The applicant did not meet medical retention standards for non-duty related (NDR) right wrist condition (status post graft & fusion) 40 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 (ARNG)). Not in the line of duty. No permanent service aggravation. d. The applicant met medical retention standards for visual acuity, hearing, cough (smoker), back feet, deviated nasal septum, history of carpal tunnel surgery, and other physical, medical, dental and/or behavioral health conditions IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant’s era of service. e. 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 that would support a CHANGE to the character and/or reason for the discharge in this case. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a response and/or a rebuttal. He did not respond. 7. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 8. By regulation: a. AR 40-501 provides information on medical fitness standards for induction, enlistment, appointment, and retention and related policies and procedures. b. AR 635-40 establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation. c. AR 600-60 (Physical Performance Evaluation System) covers the Physical Performance Evaluation System (PPES). It requires Active Army, ARNG, and U.S. Army Reserve (USAR) Soldiers with a permanent profile containing a 3 or 4 in one of the profile serial factors to be evaluated by an administrative screening board designated as the MMRB. d. NGR 600-200 covers personnel management of ARNG personnel. Chapter 8 of the regulation, ln effect at the time, provided for discharges. Paragraph 8-26 specified the reasons for administrative discharges from the ARNG. Paragraph 8-26y stated that if a commander suspected a Soldier may not be medically qualified for retention, he/she would direct the Soldier to present him/herself for a medical examination in accordance with AR 40-501. A complete medical examination would be accomplished and the results forwarded to the unit commander for disposition. If retention is not recommended, a request for discharge would be submitted to TAG. When a medical condition was incurred in line of duty, the procedures of NGR 40-3 would apply. Discharge action would not be affected pending final disposition of the case. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that they could make a fair and equitable decision in the case without a personal appearance from the applicant. The Board found that based upon the medical advisory’s finding that there was no evidence of a medical disability or condition that would support a change to the character and/or reason for the discharge, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 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 that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation (AR) 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the Physical Evaluation Board (PEB) rates all disabilities using the Veteran's Administration Schedule for Rating Disabilities (VASRD). Department of Defense Instruction (DODI) 1332.39, and AR 635-40, appendix B, modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions. Ratings can range from 0 to 100 percent, rising in increments of 10 percent. 4. AR 600-60 (Physical Performance Evaluation System) covers the Physical Performance Evaluation System (PPES). It requires Active Army, Army National Guard (ARNG), and U.S. Army Reserve (USAR) Soldiers with a permanent profile containing a 3 or 4 in one of the profile serial factors to be evaluated by an administrative screening board designated as the Medical Occupation Specialty (MOS) Medical Retention Board (MMRB). This evaluation is to determine if Soldiers can perform satisfactorily in their primary occupational specialty or specialty code in a worldwide field environment. This regulation gives the duties and procedures of the MMRB. It also gives the procedures for processing the decision of the MMRB convening authority to recommend a Soldier for medical reclassification or to refer the Soldier to the Physical Disability Evaluation System (PDES) or the Reserve Component medical disqualification process, as applicable. Soldiers will appear before an MMRB within 60 days from the date the DA Form 3349 (Physical Profile) is signed by the appropriate approving authority. a. The PPES is a program designed to evaluate Soldiers with a permanent numerical designator of 3 or 4 (hereafter referred to as a permanent 3 or 4 profile) in one of the profile serial factors based on their physical ability to perform their duties in a worldwide field or austere environment and recorded on the DA Form 3349. The PPES establishes the MMRB as an administrative screening board to make this evaluation. This screening system ensures continuity of effort among commanders, doctors, personnel managers, and the PDES. It provides the MMRB convening authority with increased flexibility to determine a Soldier's deployability, reclassification potential, or referral into the PDES (or processing for medical disqualification as applicable to certain Reserve Component cases). b. The MMRB evaluation process will not be used as a quality assessment of leadership, degree of technical skill, or promotion potential. The MMRB recommendations will only be based on an enlisted Soldiers or warrant officers physical ability to reasonably perform the duties of his or her primary MOS or of an officer's physical ability to perform in his or her branch or area of concentration or functional area. 5. National Guard Regulation 600-200 covers personnel management of ARNG personnel. Chapter 8 of the regulation, ln effect at the time, provided for discharges. Paragraph 8-26 specified the reasons for administrative discharges from the ARNG. Paragraph 8-26y stated that if a commander suspected a Soldier may not be medically qualified for retention, he/she would direct the Soldier to present him/herself for a medical examination in accordance with AR 40-501. A complete medical examination would be accomplished and the results forwarded to the unit commander for disposition. If retention is not recommended, a request for discharge would be submitted to The Adjutant General. When a medical condition was incurred in line of duty, the procedures of NGR 40-3 would apply. Discharge action would not be affected pending final disposition of the case. ABCMR Record of Proceedings (cont) AR20160012731 9 1