ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20160016639 APPLICANT REQUESTS: early retirement from the Texas Army National Guard based on having been found medically disqualified for retention APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Electronic DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * A “Notification of Medical Disqualification” * Twelve pages of medical records FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. Applicant’s submission of DD Form 293 is accepted in lieu of a DD Form 149 (Application for Correction of Military Records) as the ABCMR is the proper forum rather than the Army Discharge Review Board. 2. The applicant states he asked for a medical board so he could get early retirement and was told he would get one. He later found out that he was just discharged. He would like a review of his records, because he meets the criteria for early retirement. 3. The applicant provides: a. A DA Form 7425 (Readiness and Deployment Checklist), dated 8 July 2008 showing he was an overall “NO GO” in the legal, medical, and dental sections. b. A Standard Form 600 (Chronological Record of Medical Care) (SF 600), dated 8 July 2008, capturing the results of an annual vision screening. c. A DA Form 7349 (Initial Medical Review – Annual Medical Certificate), dated 8 July 2008. In “Part I” applicant indicates he has medical and dental problems, has been treated by a healthcare provider since his last physical, and takes medication. In “Part II” the initial reviewer indicates applicant requires further evaluation. In “Part III” a physician indicates applicant is fit and assigns PULHES scores of 313221. In “Part IV” the same physician signs as the approving authority. d. A DD Form 2215 (Reference Audiogram), dated 8 July 2008, indicating applicant’s hearing is sufficient for retention in his current assignment. e. A DA Form 3349 (Physical Profile), dated 8 July 2008, indicating applicant has a permanent profile. Page 2 of the form, which apparently discusses an injury, was not submitted. f. A “Notification of Medical Disqualification”, dated 25 July 2008. This memorandum informed applicant that he had been identified as having a medical condition(s) that disqualified him for retention. He should complete an acknowledgement and elect separation, retirement (if eligible), or request a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB). An MEB would address conditions incurred in the line of duty per approved investigations while a PEB was designed to address non-duty incurred conditions that the Soldier did not believe were unfitting. Applicant was given an 8 September 2008 suspense. The memorandum did not reference specific enclosures. It also notified applicant that failure to respond by the suspense date would result in involuntary separation or retirement (if eligible). g. An SF 600 with four entries from 2010. * 20100223 Lumbago * 20100223 Referral per SSG X__ via SSG S__ X [low back pain] with radiculopathy increasing Perm profile ’08 requires approval Obesity, chronic knee pain – ambulates with cane, Sleep Apnea hearing loss 313211 Last PHA [periodic health assessment] ’08 No current medicals SM [servicemember] needs to provide updated current medicals reflecting current condition, any ongoing treatment SM needs updated PHA as well * 20100413 Approved profile received * 20100420 Emailed SM recurrent medical documentation needed for Case Management none submitted to date 4. A review of the applicant’s service record shows: a. NGB Form 23B (Army National Guard Retirement Points History Statement), dated 26 July 2002, showing applicant had 11 years creditable service for retired pay, as of the year ending 2001/12/16. There is no NGB Form 23B capturing the applicant’s service beyond that point. b. A memorandum, dated 1 May 2003, indicating that applicant was eligible for award of the Global War on Terrorism Service Medal. c. A memorandum, dated 1 August 2003, indicating that applicant was eligible for the Armed Forces Reserve Medal with “M” device. d. A certificate awarding the applicant the Army Achievement Medal for service during the period of 6 February 2003 to 15 December 2003. e. A memorandum, dated 6 July 2007 awarding the Army Superior Unit Award to Task Force 71, Texas National Guard, for the period 2 September 2005 to 11 October 2005. The applicant is listed among the members of Task Force 71. f. Three DA Forms 2166-8 (NCO Evaluation Report) reflecting applicant’s annual evaluations for the years 2003, 2004, and 2005. g. A promotion order showing applicant was promoted to staff sergeant in August 2005. h. A DA Form 1059 (Service School Academic Evaluation Report), dated 7 May 2006, showing he completed Phase I of the Basic Noncommissioned Officers Course. i. Orders 096-1080, dated 6 April 2011. These orders returned the applicant from an Inactive National Guard status (which began on 23 October 2006) to an active status for the purpose of ending his term of service. 5. On 4 April 2017, the Army Review Boards Agency medical advisor rendered an advisory opinion in the processing of this case. He opined that the applicant did not meet medical retention standards for lumbar radiculopathy and possibly sleep apnea. The remainder of the advisory opinion is not germane to the Board’s decision. 6. On 6 April 2017, the advisory opinion was forwarded to the applicant for acknowledgement and/or response. He did not respond. 7. By law, a member of the Reserve Component with 15 or more, but less than 20, qualifying years of service for purposes of non-regular retirement eligibility at age 60, may be issued a notification of eligibility if his service is cut short because he is unfit due to physical disability. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions and the medical advisory opinion were carefully considered. His record shows he was notified that he was medically disqualified for retention as a Reserve Component service member. He was provided options within the notification to retire if eligible, request a MEB or PEB; failure to respond would result in an involuntary separation. The applicant was not eligible to retire as he did not reach 15 years of service. He was scheduled for a medical evaluation; however, he did not attend. The medical advisory did not render a favorable opinion in this case. Based upon the preponderance of evidence, the Board agreed there is insufficient evidence to grant 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. Army Regulation 15-185, (Boards, Commissions, and Committees—Army Board for Correction of Military Records), provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for correction of a military record. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Title 10, USC, section 12731, in effect at the time, provides that a person is entitled upon application, to retired pay computed under section 12739 of this title, if the person has attained the eligibility age and has performed at least 20 years of service computed under section 12732 of this title. The Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay under this chapter. The notice shall be sent, in writing, to the person concerned within one year after the person completes that service and shall include notice of the elections available to such person under the Survivor Benefit Plan. 4. Title 10, USC, section 12731b, in effect at the time, provides that in the case of a member of the Selected Reserve of a reserve component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purposes of section 12731 of this title, determine to treat the member as having met the service requirements of subsection (a)(2) of that section and provide the member with the notification required by subsection (d) of that section if the member has completed at least 15, and less than 20, years of service computed under section 12732 of this title. Notification may not be made if the disability was the result of the member’s intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retention established by the Secretary concerned or the disability was incurred during a period of unauthorized absence. 5. Title 10, USC, section 12732, in effect at the time, generally provides that a person’s years of service for purposes of determining whether a person is entitled to retired pay under section 12731 of this title are each one year period in which the person is credited with at least 50 points. A person receives one point for each day of active service or annual training duty or attendance at a prescribed course of instruction at a service school, one point for each day of attendance at drill to include under title 32, and 15 points per year for membership in a reserve component of an armed force, including the National Guard. Service in the inactive National Guard does not count. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016639 2 1