ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  13 August 2019

	DOCKET NUMBER:  AR20180000058


APPLICANT REQUESTS:  a change to his medically unfit discharge to a disability retirement

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Department of Veterans Affairs certificate of service connected disability compensation

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 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. 

2.  The applicant states he is attempting to gain disability retirement, because he was receiving 100 percent Veterans Affairs disability at the time of his discharge and was not afforded a medical board while in the service.

3.  The applicant provides the Department of Veterans Affairs letter which certifies that he is receiving a service connected disability compensation.  The effective date of his rating is 1 December 2016.

4.  A review of the applicant’s service record shows:

	a.  He enlisted in the Tennessee Army National Guard of the United States (ARNGUS) on 14 October 2008.

	b.  He entered active duty for training to attend Basic Combat Training and Advanced Individual Training on 5 November 20018.

	c.  He was released from active duty for training on 27 March 2009.

	d.  He was ordered to active duty in support of Operation Iraqi Freedom on 
1 December 2009.

	e.  He served in Kuwait from 18 January 2010 to 25 November 2010.

	f.  He was release from active duty on 10 January 2011.

	g.  On 5 December 2012, the applicant was issued a DD Form 215 (Correction to DD Form 214).  The DD Form 215 corrected item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), deleted the Global War on Terrorism Expeditionary Medal and added the Iraqi Campaign Medal.

	h.  DA Form 4836 dated 3 August 2014, shows the applicant extended his enlistment for 1 year, which gave him a new expiration term of service (ETS) of           23 October 2015.

	i.  On 9 October 2015, the Joint Force Headquarters Tennessee National Guard approved the waiver for extension of enlisted in accordance with (IAW) NGB-ARH policy 09-026, dated 13 August 2009, table 1, rule I.

	j.  DA Form 4836 dated 19 August 2015, shows the applicant extended his enlistment for 1 year that gave him a new ETS of 23 October 2016.

	k.  He was discharge from the Tennessee Army National Guard on 30 April 2016 with an honorable character of service, under provisions of National Guard Regulation (NGR) 600-200 (Personnel General – Enlisted Personnel Management), paragraph 6-35l,

5.  In the processing of this case, a medical advisor opinion dated 16 July 2018 was received from the Army Review Boards Agency Medical Advisor.  The advisory official states the applicant met the medical retention standards:

	a.  For skin disorder, increased blood pressure, foot pain, exited prior to service (EPTS) tobacco use, EPTS right knee surgery, EPTS pes planus moderate and hallux valgus, EPTS scars, EPTS visual acuity myopia, EPTS non-disclosed motor vehicle accident, more likely than not EPTS anxiety, mood disorder, possible thought disorder and other medical and physical, dental and/or behavioral conditions IAW chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), 
Army Regulation (AR) 40-501 (Standards of Medical Fitness), and provisions in 
AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that were applicable to the applicant’s era of service.

* overweight/obesity is not a medically boardable condition
* personality disorder(s) are not medically boardable condition(s)
* polysubstance abuse is not a medically boardable condition
* no military service history of concussion and/or mild traumatic brain injury (mTBI)
   
   b.  The applicant did not meet medical retention standard presumably for EPTS generalized anxiety disorder and/or EPTS major depressive disorder with psychotic features, and/or history of hepatitis C treated (Deployability) IAW chapter 3, AR 40-501, and following the previsions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service.

   c.  The applicant clearly net medical retention standards at the completion of his period of active duty from 2009 to 2011 with deployment to Kuwait and Iraq.  During this deployment the applicant reported no trauma or combat exposures.

   d.  The available history indicated that the applicant later began abusing alcohol, oral and injectable illegal drugs, in conjunction with mental/behavioral symptoms of depression, anxiety (evidence of EPTS).  The applicant’s post deployment Hepatitis C identification during plasma donation strongly was not likely service related.  It is most likely secondary to illicit injectable drug abuse.  Pre-military service substance abuse history is not clear.  Pre-military service undeclared or not diagnosed behavioral/mental health condition are very likely.  Concurrently, the applicant failed several army physical fitness tests (APFT), gained nearly 100 pounds, but was not separated for failure to meet AR 600-9 requirements.
   
6.  The applicant was sent a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 

7.  There is no evidence that the applicant applied to the Army Discharge Review Board for an update of his discharge.   

8.  By regulation NGR 600-200 (Enlisted Personnel Management), all involuntary administrative separations require commander to notify Soldiers concerning intent to initiate separation procedures.  All Soldiers being involuntarily separated will be afforded a reasonable opportunity to provide a written response for consideration by the separation authority.  Refer to chapter 15 (Separation for Other Reasons), AR 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations) for reasons for separation; medically unfit for retention per AR 40-501.  Commander who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for complete medical examination.  When medical condition was incurred in line of duty, the procedures of AR 600-8-4 (Line of Duty Policy, Procedures, and Investigations) will apply.  Discharge will not be ordered while the case is pending final disposition. 

9.  By regulation 40-501 (Standards of Medical Fitness) provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties.

10.  The Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board found relief is not warranted.  The applicant’s contentions, medical concerns, and the medical advisory were carefully considered.  The medical advisory official determined there was no boardable medical condition during his period of active service, and that he was separated accordingly by the ARNG.  He was provided the opportunity to rebut the advisory; however, he did not respond.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. 

Prior to closing the case, the Board did note he received a DD Form 214 for his period of ADT that shows an uncharacterized character of service.  The Board recommended a correction is completed to show that period of active service as Honorable to more accurately depict his military service.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 27 March 2009 showing his character of service as Honorable.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to granting a medical retirement.

	 
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.  National Guard Regulation (NGR) 600-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 6 all involuntary administrative separations require commander to notify Soldiers concerning intent to initiate separation procedures.  All Soldiers being involuntarily separated will be afforded a reasonable opportunity to provide a written response for consideration by the separation authority. 

	b.  Paragraph 6-35l, Refer to chapter 15 (Separation for Other Reasons), 
AR 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations) for reasons for separation; medically unfit for retention per AR 40-501.  Commander who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for complete medical examination.  When medical condition was incurred in line of duty, the procedures of AR 600-8-4 will apply.  Discharge will not be ordered while the case is pending final disposition.

3.  AR 40-501 (Standards of Medical Fitness), in effect at the time, provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties.  Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), states gives the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Soldiers with conditions listed in this chapter will be evaluated by a medical board and will be referred to a physical evaluation board (PEB).  

4.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), prescribes policy and implements the requirements of chapter 61 (Retirement or Separation for Physical Disability) of Title 10, U.S. Code (USC).  The regulation states:

     a.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.

     b.  Based upon the requirements of section 1203 of chapter 61, Title 10, USC, states Soldiers, not otherwise eligible for military retirement, with a disability not the result of intentional misconduct or willful neglect, and with less than a 30 percent disability rating, will receive severance pay.

     c.  The VA Schedule for Rating Disabilities (VASRD) is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Because of differences between Army and VA applications of rating policies, differences in ratings may result.  Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating.  Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.  These percentages are applied based on the severity of the condition at the time of separation.  

5.  AR 135-178, Chapter 15, in effect at the time, sets policies, standards and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of ARNGUS and USAR enlisted Soldiers for a variety of reasons.  Medically unfit for retention, discharge will be accomplished when it has been determines that a Soldier is no longer qualified for retention by reason of medical unfitness.

6.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial: it also applies to other corrections, including changes in the discharge, which may be warranted based on equity, or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgrade service characterization.  

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180000058


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