ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 November 2019

	DOCKET NUMBER:  AR20190003317


APPLICANT REQUESTS:  correction to his 1985 DD Form 214 (Certificate of 
Release or Discharge from Active Duty) to show he was medically separated instead 
of honorably discharged.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214
*	Memorandum for Adjutant General of New York, dated 15 June 1995; subject: 
The Applicant
*	Memorandum for Commander, Company D, 1-127 Armor, dated 22 June 1995; 
subject: State Medical Duty Review Board (MDRB)
*	Request for orders, dated 22 June 1995
*	National Guard Bureau (NGB) Form 22 (Report of Separation and Record of 
Service) dated 31 July 1995

FACTS:

1.  The applicant did not file within the 3 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. 

2.  The applicant states if his DD Form 214 were corrected to show he was medically 
separated, he would qualify for health care under the provisions of the Department 
of Veterans Affairs.  During processing through the disability evaluation system, he 
was found unfit for duty.  He states, in effect, that he was separated from the Army 
National Guard (ARNG) in 1995 due to an injury. 

3.  The applicant enlisted in the State of New York Army National Guard (NYARNG) 
on 29 June 1984.  

4.  On 29 October 1984 he entered active duty for training at Fort Benning, Georgia 
to complete his basic and advanced individual training.  He completed the training 
requirements for Infantryman.  There is no evidence he incurred an injury in the line 
of duty while performing this period of active duty for training.  His record does not 
contain physical profiling documents for this period of active service showing he 
incurred an injury, received medical treatment and then was profiled by a medical 
provider.   

5.  On 8 February 1985 he was honorably released from active duty for training and 
transferred to his NYARNG unit.  He completed 3 months and 10 days of active duty 
service.  His DD Form 214 contains the following pertinent information:

*	Block 25 (Separation Authority) – Self-terminating Orders (Number) 154-56 
dated 9 August 1984
*	Block 28 (Narrative Reason for Separation) – Completion of period of active 
duty training

6.  On 19 October 1991 he underwent a periodic medical examination wherein he 
was found qualified for retention with no profile restrictions as recorded on Standard 
Form (SF) 88 (Report of Medical Examination).  He completed SF 93 (Report of 
Medical History) noting he was in good health but he had frequent headaches.  
There is one annotation wherein he stated he had a back injury and was treated at a 
local civilian hospital during the period February through March 1984.  

7.  On 21 June 1993 the applicant extended his enlistment for 6 years in the 
NYARNG adjusting his expiration of term of service to 28 June 1999.

8.  On 1 May 1994 he completed an annual medical certificate for the NYARNG.  He 
stated he had medical problems and was being seen by a physician for a back injury 
that occurred on 2 October 1992.  The physical restriction noted was he could not lift 
in excess of 30 pounds.  His military supervisor noted he was disabled and required 
further medical evaluation. 

9.  On 16 September 1994 a private medical provider stated the applicant was his 
patient since 3 June 1993.  He had a low back injury from a fall off a roof on 
2 October 1992.  The medical provider stated, "He has made great progress but still 
is restricted in all ranges of motion in the lumbar region and is limited to 30 [pounds] 
maximum lifting."

10.  On 21 October 1994, an accident insurance company received an independent 
review of the applicant’s civilian medical records.  It states the applicant injured his 
back on 2 October 1992 and suffers from chronic cervical strain, chronic lumbar 
strain and a potential compression fracture at L1.  The reviewer’s prognosis for the 
applicant was he was making a poor recovery.  He further stated chiropractic care 
had not significantly improved the applicant’s medical conditions.  He recommended 
the applicant stop chiropractic care and start physical therapy treatments with the 
potential for chronic pain management.  He stated the applicant could not return to 
roofing or construction labor with any physical labor being contraindicated.  He 
reviewed all the applicant’s medical records and conducted an examination.  A 
magnetic resonance imaging (MRI) study was done on 14 January 1994.  The 
results of the MRI were degenerative changes of the facet joints with borderlines 
spinal stenosis of L4-L5; degenerative changes of the L4-L5 and L5-S1 disc spaces; 
and, moderate bulging of the L4-L5 and L5-S1 disc but no definite disc herniation 
notes. 

11.  On 15 November 1994 a NYARNG medical provider (physician assistant) 
prepared SF 600 (Chronological Record of Medical Care) wherein he stated he had 
reviewed the medical documents provided by the applicant.  On 2 October 1992 the 
applicant fell 15 feet off a roof while performing his civilian employment duties.  He 
was seen at an emergency department and was admitted to the hospital.  He was a 
laborer at the time and based on the fall he had a Worker’s Compensation claim.  
The applicant’s chief complaint was chronic low back pain. 

12. Subsequently, the applicant’s records underwent a MDRB for the purpose of 
evaluating the applicant’s fitness to maintain his current military occupational 
specialty or duty assignment and membership in the ARNG.  The MDRB determined 
the applicant did not meet medical retention standards and he should be separated 
under the provisions of Army Regulation 40-501 (Standards of Medical Fitness) 
paragraph 3-14a(2), paragraph 3-14a(3) and paragraph 3-39c.  

13.  On or about 27 December 1994 the applicant acknowledged receipt of the 
medical duty review board’s decision.  In writing he requested a review of his 
medical record by the NGB.  

14.  On 6 June 1995 his medical record and supporting documents were reviewed 
by a medical doctor serving as the Deputy State Surgeon, a lieutenant colonel in the 
NYARNG.  He stated, in effect, the applicant was injured when he fell 15 feet and 
responded poorly to chiropractic care.  He was in treatment for 2 years with his 
chiropractor stating he was not making a full recovery and he had significant 
physical limitations.  The Deputy State Surgeon stated upon his review he found the 
applicant did not meet the medical fitness standards for retention and he should be 
separated from the NYARNG.   

15.  On or about 9 June 1995, the NYARNG sent a memorandum to the NGB, 
Health Services Division for its review of the applicant’s medical records and 
separation file. 

16.  On 15 June 1995 the NGB Chief Surgeon, a medical doctor, reviewed the 
applicant’s medical record, supporting documents and endorsements from the State.  
He stated the MDRB found the applicant unfit for further duty in the military in 
accordance with Army Regulation 40-501 and National Guard Regulation 40-501 
(Medical Services – Standards of Medical Fitness for Army National Guard), 
chapters 16 and 17.  He concurred with the State’s findings and stated upon review 
of the applicant’s NGB Form 23B (Chronological History of Retirement Points) he did 
not qualify for early proportional retirement.  This document is in the applicant’s 
military personnel records and the applicant provided a copy of it for the Board’s 
review.

17.  On 22 June 1995 the NYARNG State Surgeon informed the applicant’s 
company commander by memorandum he would be medically separated.

18.  On 17 July 1995 the NYARNG Office of the Adjutant General issued Orders 
137-019 discharging the applicant from the ARNG and transferring him to the U.S. 
Army Reserve Control Group (Reinforcement) effective 31 July 1995.  In support of 
his application the applicant provided the NYARNG request for his separation 
orders.

19.  On 31 July 1995 the applicant was honorably released and transferred to the 
U.S Army Reserve Control Group (Reinforcement) to complete his service 
obligation.  He was issued an NGB Form 22 attesting to his release and subsequent 
transfer.  He served honorably for 11 years, 1 month, and 2 days in the ARNG.  The 
applicant provided a copy of this document and it is also filed in his record. 

20.  On 27 March 2001 the applicant was discharged from the U.S. Army Reserve 
by Orders D-03-116560 issued by U.S. Army Reserve Personnel Command. 

BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found 
that relief is not warranted.

2.  The applicant was properly separated from the NYARNG on 17 July 1995 for not 
meeting the medical fitness standards for retention in accordance with Army 
Regulation 40-501 and National Guard Regulation 40-501.

3.  The applicant’s medical records show that he stated he incurred a back injury in 
February - March 1984 prior to enlisting in the Army National Guard on 29 June 
1984.  Further, his medical records show that he fell from a roof on 2 October 1992, 
further injuring his back while working for a civilian employer.  Neither of these 
injuries occurred in the line of duty or while the applicant was on military duty.  There 
is no basis for changing his DD Form 214 for the active duty period of service ending 
8 February 1985 from completion of period of active duty training to medical 
separation.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XXX	:XXX	: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, 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 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.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military 
Departments with authority to retire or discharge a member if they find the member 
unfit to perform military duties because of physical disability.

	a.  Soldiers are referred to the disability system when they no longer meet 
medical retention standards in accordance with Army Regulation 40-501 (Standards 
of Medical Fitness), chapter 3, as stipulated in a medical evaluation board; when 
they receive a permanent medical profile rating of 3 or 4 in any physiological or 
psychological factor and are referred by an Military Occupation Specialty Medical 
Retention Board; and/or they are command-referred for a fitness-for-duty medical 
examination.

	b.  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.  Reasonable performance of the preponderance of duties will invariably result 
in a finding of fitness for continued duty.  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.

3.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation), in effect at the time, established the Army Disability Evaluation System 
and sets forth policies, responsibilities, and procedures that apply in determining 
whether a Soldier is unfit because of physical disability to reasonably perform the 
duties of his office, grade, rank, or rating.  Only the unfitting conditions or defects 
and those which contribute to unfitness will be considered in arriving at the rated 
degree of incapacity warranting retirement or separation for disability.

	a.  Paragraph 3-2 states disability compensation is not an entitlement acquired 
by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose 
service is interrupted and who can no longer continue to reasonably perform 
because of a physical disability incurred or aggravated in military service.

	b.  Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting 
disabilities must meet the following line-of-duty criteria to be eligible to receive 
retirement and severance pay benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier 
was entitled to basic pay or as the proximate cause of performing active duty or 
inactive duty training.

		(2)  The disability must not have resulted from the Soldier's intentional 
misconduct or willful neglect and must not have been incurred during a period of 
unauthorized absence.

4.  Army Regulation 40-501 (Standards of Medical Fitness) provides information on 
medical fitness standards for induction, enlistment, appointment, retention, and 
related policies and procedures.  Soldiers with conditions listed in chapter 3 who do 
not meet the required medical standards will be evaluated by medical evaluation 
board and will be referred to a physical evaluation board (PEB) as defined in Army 
Regulation 635–40 with the following caveats:  

	a.  USAR or Army National Guard (ARNG) Soldiers not on active duty, whose 
medical condition was not incurred or aggravated during an active duty period, will 
be processed in accordance with chapter 9 and chapter 10 of this regulation.

	b.  Normally, Reservists who do not meet the fitness standards set by chapter 3 
will be transferred to the Retired Reserve per Army Regulation 140–10 or 
discharged from the USAR per Army Regulation 135–175 (Separation of Officers) or 
Army Regulation 135–178 (Enlisted Administrative Separations).  They will be 
transferred to the Retired Reserve only if eligible and if they apply for it.

	c.  Reservists who do not meet medical retention standards may request 
continuance in an active USAR status.  In such cases, a medical impairment 
incurred in either military or civilian status will be acceptable; it need not have been 
incurred only in the line of duty.  Reservists with nonduty related medical conditions 
who are pending separation for not meeting the medical retention standards of 
chapter 3 may request referral to a PEB for a determination of fitness in accordance 
with paragraph 9-12.

	d.  For members of the ARNG not on active duty, profile revisions will be 
accomplished by the NGB Surgeon, the State surgeon or his designated medical 
officer. 

5.  National Guard Regulation 40-501 (Medical Services – Standards of Medical 
Fitness for Army National Guard) states each ARNG Soldier is individually 
responsible for the maintenance of his/her medical, physical and mental fitness.  Any 
recommendation of restricted activity that has been made by a private physician 
shall be reported, preferably in writing, before performing and duty, and shall be 
honored by the Soldier’s commander until an evaluation and recommended course 
of action can be determined by a Medical Corps Officer.  

	a.  The State Medical Duty Review Board will review all available medical 
documentation, and may request additional information or consultations, or may 
direct additional evaluation by the examiner who provided the initial medical 
evaluation.  

	b.  The State board will consist of a Medical Corps Officer of field grade rank and 
designated by the State Surgeon; a commissioned officer representing the State 
Military Personnel Officer; and a field grade officer knowledgeable of the 
requirements of duty performance in the Soldier’s military occupational specialty, or 
a senior noncommissioned officer (pay grade E-8 or E-9) familiar with duty 
requirements.

	c.  The Board will review and make recommendation(s) to retain the Soldier in 
the ARNG with or without duty restrictions, and recommend a permanent profile if 
appropriate; or reclassification to a more suitable military occupational specialty, with 
or without duty limitation, a permanent profile and potential reassignment to a 
nondeployable unit; or separation from the ARNG as medically unfit for retention. 

6.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of 
a member who has at least 20 years of service or a disability rating of at least 
30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability 
separation of a member who has less than 20 years of service and a disability rating 
of less than 30 percent.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records 
(ABCMR)) 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.

8.  Army Regulation 635-5 (Personnel Separation – Separation Documents) in effect 
at the time stated the DD Form 214 is a summary of a Soldier's most recent period 
of continuous active duty service.  It provides a brief, clear-cut record of active duty 
service at the time of release from active duty, retirement, or discharge.  For Soldiers 
of the Reserve Component, a DD Form 214 is issued after completing active duty 
training which results in the award of a military occupational specialty even if the 
active duty was for less than 90 days.  The source documents used to prepare the 
DD Form 214 include:

*	DA Form 2-1 (Personnel Qualification Record) 
*	separation authority documentation, if applicable
*	separation order
*	any other document authorized for filing in their official military personnel file

//NOTHING FOLLOWS//


ABCMR Record of Proceedings (cont)	 AR20190003317

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