IN THE CASE OF: BOARD DATE: 10 July 2020 DOCKET NUMBER: AR20190001800 APPLICANT REQUESTS: * in effect, correction of his military records to show he was discharged due to disability APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the 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. 2. The applicant states he did not receive a proper separation physical. He further contends that he had degenerative disc disease prior to his discharge, and he suffers from numbness in his lower back. 3. The applicant indicates that he has provided his Army physical and X-rays; however, these documents were not attached to his application. 4. The complete circumstances of the applicant's discharge are not available. His military records show: * he enlisted in the West Virginia Army National Guard (WVARNG) on 5 February 2007 * he requested transfer to the Individual Ready Reserve (IRR) on 1 June 2015, based on the commuting distance to his new permanent residence * he was honorably discharged from the ARNG and placed in the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 13 September 2015 * he was discharged from the USAR on 9 February 2016 5. His record is void of any medical profiles or line of duty investigations. 6. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS) and made the following findings and recommendations: a. The applicant is applying to the ABCMR in essence requesting referral for a separation health assessment (SHA) / separation history and physical exam (SHPE). He states that he “never received a proper final physical,” and had degenerative discs prior to his discharge. b. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The applicant entered the West Virginia Army National Guard on 5 February 2007 and was separated on 13 September 2015 under paragraph 6-35-f of NGR 600-200, Enlisted Personnel Management (31 July 2009), commuting distance (change of residence). His mailing address after separation was in Fairbanks, AK. He was separated from the Army on 9 February 2016. c. There are no lumbar condition AHLTA encounters. JLV shows one encounter on 29 July 2019 for a one-week history of lower back pain. While the applicant did not request referral to the Disability Evaluation System, there is no evidence that his lumbar condition failed retention standards requiring a permanent profile during his service or that his lumbar condition was incurred in the line of duty. d. The requirements for an SHA are covered in paragraph 8-12c of AR 40-501, Standards of Medical Fitness (23 August 2010). All four categories of Soldiers requiring a SHA are Soldiers separating from active duty. The applicant was not on active duty at the time of his separation. e. Separation physical requirements are addressed in Directive-type Memorandum (DTM) 14-006, Subject: Directive-type Memorandum (DTM) 14-006, SHPE, 7 July 2014. It provides that: Service members separating from Selected Reserves not otherwise required to receive a SHPE may request a SHPE within 6 months before the scheduled date of separation. e. There is no evidence the applicant made such a request prior to separation. f. Given the current documentation, it is the opinion of the Agency Medical Advisor that a referral to the Disability Evaluation System is not warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. The Board concurred with the ARBA Medical Advisor's conclusion that there is insufficient evidence to support a conclusion that the applicant should have been processed through the Disability Evaluation System to determine if he had an unfitting condition incurred in the line of duty that would have warranted discharge with severance pay or retirement due to disability. The Board noted the applicant could have requested an SHPE prior to being discharge from the USAR, but did not do so. Because he was not on active duty, an SHA was not authorized. By a preponderance of the evidence, the Board determined the applicant's honorable discharge from the USAR on 9 February 2016 was not in error, inequitable, or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :XXX 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, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states- a. Medical Evaluation Boards/Physical Evaluation Boards are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. b. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature/degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired. 3. AR 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190001800 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1