BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20170001776 BOARD VOTE: __x_______ __x_____ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20170001776 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army and State Army National Guard records of the individual concerned be corrected by: a. Rescinding PAARNG Orders 059-1128, dated 28 February 2013, which discharged the individual effective 17 December 2013. b. Voiding the applicant’s NGB Form 22, effected 16 December 2013. c. Restoring the applicant to active ARNG troop program unit (TPU) status effective 16 December 2013 in the same rank (captain) and in the same unit and position (or similar) as he was before his discharge on 16 December 2013. d. Providing him pay and allowances and retirement point credit for full ARNG TPU participation, to include a period of annual training each year, from 16 December 2013 to the date his discharge orders are rescinded. e. Showing in his record that the period from 16 December 2013 to the date his discharge orders are rescinded is non-rated time due to no fault of the individual. __________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: 1 June 2017 DOCKET NUMBER: AR20170001776 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 that the Army National Guard (ARNG) rescind his orders discharging him from the ARNG and as a Reserve of the Army (USAR) effective 16 December 2013 and return him to his former position, rank, and unit of assignment without any break in service. 2. The applicant states, in effect, that a Physical Evaluation Board (PEB) conducted on 3 October 2016, as directed by the Army Board for Correction of Military Records (ABCMR), found him fit for duty in spite of an earlier ARNG decision that he failed medical retention standards, which led to his discharge. 3. The applicant provides a signed letter stating his election as shown in paragraph 1 above. 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, a captain in the Pennsylvania ARNG (PAARNG), was deployed to Afghanistan during a period of active duty from 3 December 2007 to 25 December 2008. During this active duty, the applicant experienced injuries to his hearing, a back strain, post-traumatic stress disorder (PTSD) symptoms, and a kidney stone (nephrolithiasis). However, these conditions were not referred to a Medical Evaluation Board (MEB) before the applicant was discharged from active duty. The applicant returned to active ARNG troop program unit (TPU) participation. In 2013, the PAARNG determined that the applicant failed medical retention standards and he was discharged from the ARNG and the USAR effective 16 December 2013 under orders 059-1128. 3. The applicant appealed these circumstances to the ABCMR in 2014, contending that he should have been retired instead of discharged. In 2015, the ABCMR the applicant should have been referred to an MEB prior to his discharge from active duty and directed that his case then be reviewed by an MEB and a Physical Evaluation Board (PEB) if warranted. If the PEB found that the applicant should have been retired, corrections were to be made to that effect. 4. However, when the PEB was conducted on 8 September 2016, the applicant’s injuries were not found unfitting and it was found that he met medical retention standards. The applicant agreed with this determination. Accordingly, the applicant requested that his discharge be rescinded and that he be returned to active ARNG TPU duty. DISCUSSION: The PEB directed by the ABCMR found that applicant met medical retention standards and that he was fit for duty. The applicant agreed with these findings. The PEB findings would support a recommendation to rescind the PAARNG discharge on 16 December 2013 for failing to meet retention medical standards and restore the applicant to active ARNG TPU duty effective 16 December 2013. A recommendation to grant relief would also include appropriate back pay and allowances, retirement point credit, and an appropriate statement of non-rated time (to account for missing evaluations) from 16 December 2013 to the date his discharge orders are rescinded. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170001776 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170001776 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2