BOARD DATE: 13 March 2020 DOCKET NUMBER: AR20190012251 APPLICANT REQUESTS: * referral of his record to the Integrated Disability Evaluation System (IDES) * 2 years and 27 days of credit for active duty service and retirement for length of service * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by deleting from block 18 (Remarks) the entry "NGR (AR) 600-5, Chapter 6-5c; Involuntary Separation" * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Army National Guard (ARNG) Retirement Points History Statement * DD Form 214 for the period 6 September 2006 to 30 July 2013 * involuntary separation packet * mental health evaluation diagnosis/prognosis * rebuttal packet to involuntary separation * DA Form 3349 (Physical Profile), dated 18 May 2013 * medical records (sleep study) * Department of Veterans Affairs summary of benefits and rating decision documents * DD Form 3349, dated 7 June 2013 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code, 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 he was involuntary curtailed from the Active Guard Reserve (AGR) program without a Medical Evaluation Board (MEB). An MEB was warranted and recommended by military medical personnel. He was separated from the AGR program approximately 27 days prior to reaching 18 years of active federal service and sanctuary protection. 3. Counsel states: a. The applicant has struggled with post-traumatic stress disorder (PTSD) and sleep apnea since completing a combat deployment in 2003. He did not seek medical treatment for fear of being stigmatized. His symptoms worsened following another combat deployment in 2006. Towards the end of his career, his symptoms manifested resulting in numerous absences from work. b. On 12 June 2013, the applicant was serving in an AGR status. He was notified of involuntary separation from the AGR program for his absences. Prior to receiving this notice, the following significant events occurred (1) On 9 April 2013, he was command referred for a mental health evaluation. (2) On 2 May 2013, he was diagnosed by a doctor with PTSD and major depressive disorder, recurrent. The doctor specifically recommended referral to an MEB for DES processing. (3) On 14-15 May 2013, he was absent from work and has little to no memory of what exactly transpired. He ended up being admitted to an in-patient treatment facility. He was later transferred to an in-patient treatment program specializing in PTSD treatment. (4) On 18 May 2013, he was given a permanent profile. Two additional doctors recommended him for an MEB based on his diagnosed PTSD and depression. (5) On 7 June 2013, he was issued another profile for his PTSD. The doctor noted that "MEB is in process. SM [servicemember] is not expected to return to duty." c. On 30 June 2013, he submitted a rebuttal to the involuntary separation from the AGR. d. On 16 July 2013, he underwent a sleep study that resulted in his diagnosis for sleep apnea. e. On 30 July 2013, he was involuntarily separated from the AGR Program. He was never referred to an MEB. He has subsequently been rated at 100 percent disability for his PTSD by the VA. His rating for sleep apnea is currently pending, but is inconsequential for rating purposes because he is (and always has been) rated at 100 percent for his PTSD. f. The applicant’s command and the MSARNG rushed his AGR curtailment and separation for the sole purpose of preventing him from reaching the 18-year sanctuary. They knew that his absences were easily explained and caused by his combat-related PTSD and depression. His conviction [sic] was well documented by multiple military doctors, and he was eligible and recommended for an MEB. g. It is indisputable that the applicant should have been referred to an MEB. He was recommended for an MEB by four different military doctors. Their recommendations all came within a few months of his separation from the AGR program. On 2 April 2013, a clinical neuropsychologist, made the following observations and recommendations: (1) The diagnoses are PTSD, chronic, and major depressive disorder, recurrent. (2) Prognosis: The applicant's diagnosis of PTSD is contributing to the work related difficulties identified by his command, particularly excessive use of leave; however, there is minimal documentation suggesting that work related tasks have not been accomplished. It is unclear the level of severity of his diagnosis due to inconsistent information obtained from collateral sources for the purpose of this exam. It is recommended that he be referred for an MEB for processing through the DES since his conditions were acquired in the line of duty. He is encourage to continue participating in individual therapy to assist him in improving his coping skills and managing symptoms of PTSD and increased frequency of visits is recommended. The applicant should be evaluated by his military medical unit and should provide regular updates in regard to his treatment progress to ensure that his MEB accurately reflects his current symptoms. h. Following this note from the doctor, the applicant was given a permanent profile for the same conditions. The permanent profile was issued and approved on 18 May 2013. In pertinent part, they noted the following: SM has undergone evaluation at KAFB, by neuropsychologist with recommendation of MEB and permanent profile for diagnoses noted. New data from primary care provider reveals ongoing treatment for several years. aon [sic] trazadone, xanax, wellbutrin, cymbalta and counseling. Currently in involuntary inpatient treatment. Will require MEB. i. Shortly thereafter, the applicant again received a profile from Dr. W, who mistakenly believed that the applicant’s MEB had already been initiated. She noted the following: (1) Expected date of fully mission capable: 5 September 2013. (2) Justification comments for fully mission capable: MEB is in process. SM is not expected to return to duty. (3) Recommend reassigned away from current stressors in Jackson, MS. SM has become estranged from his wife and perceives his current chain of command climate to be hostile. He should be moved closer to his family support in Hattiesburg, MS. Strongly recommend limited duty with light leadership responsibilities. Recommend access to behavioral health services and sobriety supports. j. Despite this clear evidence that the applicant was not fit for duty and warranted an MEB, none was initiated. Further supporting his medical conditions at the time of his separation is his diagnosis of sleep apnea. The diagnosis is based entirely on the sleep study conducted on 16-17 July 2013 (prior to separation). Accordingly, in addition to the PTSD and depression, he has demonstrated that his sleep apnea was also service connected and present at the time of separation. Accordingly, where an MEB was clearly warranted at the time of his separation, he should be inserted into the IDES process and considered for medical retirement. k. 20-Year Retirement. Had the applicant’s command and the Mississippi Army National Guard (MSARNG) properly enrolled him in the DES for his documented and unfitting PTSD, he clearly would have obtained at least 27 additional days of active service on the AGR program, entitling him to sanctuary protection. The sanctuary statute protects a member from involuntary separation after reaching 18 but less than 20 years of active federal service. l. If the applicant had been enrolled in an MEB, he unquestionably would have at least attained 18 years of active federal service, regardless of the outcome of the MEB. Accordingly, where he was improperly denied an MEB, he was concurrently improperly removed from active federal service prior to achieving 18 years of service. He must therefore be awarded constructive active duty service to complete the 20 years that he should have been able to obtain. His retirement date should be on or about 26 August 2015 (2 years and 27 days after he was separated on 30 July 2013), and he should be retired from the active component. m. DD Form 214 Amendment. Based on the above determination that the applicant’s curtailment from the AGR program was improperly executed, without consideration of his known PTSD diagnosis, he requests that his DD Form 214 be corrected in block 18 by removing the language "NGR (AR) 600-5, CHAPTER 6-5C; Involuntary Separation." He should not have been removed prior to an MEB, and his PTSD and sleep apnea should have been considered as disqualifying medical conditions that clearly contributed to his misconduct. 4. The applicant was appointed a Reserve commissioned officer on 15 June 1991. On the same date he executed an oath of office in the MSARNG. 5. His records show he served in Afghanistan from 19 March to 24 September 2003 and from 2 January to 1 July 2006. 6. The applicant entered active duty in an AGR status on 6 September 2006. His Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) is dated 1 August 2007. 7. The applicant was promoted to the rank of lieutenant colonel effective 5 June 2009. 8. On 15 September 2012, the applicant was counseled by his supervisor (Colonel (COL) H) regarding his responsibilities to report daily to his assigned place of duty. COL H stated the counseling was necessary and prudent due to the applicant's recent activities and absences which were developing into a pattern and were becoming problematic in the performance of his duties. 9. On 29 March 2013, COL H provided a memorandum for record (MFR) outlining the trends regarding the applicant's recent absences. COL H stated that the applicant's pattern of behavior reinforced the concern that the applicant was having some type of issues, with either significant emotional events, work place dissatisfaction, or other personnel or family issues. COL H also stated that as his supervisor, he verbally counseled the applicant on numerous occasions. 10. On 9 April 2013, COL H issued a memorandum directing the applicant to undergo a mental health evaluation. COL H states that before directing the mental health evaluation, he discussed its advisability with a military mental health professional who concurred that the evaluation was warranted and was appropriate. COL H concluded that an evaluation was necessary based upon the applicant's behavior(s) described below: a. Inconsistent work behaviors that indicated inconsistent sleep behaviors, depression related to PTSD, and general behaviors that caused concern to fellow officers and Soldiers of his health and well-being. On the week of 25-29 March, the applicant indicated severe depression related to a combat incident from deployment. b. Excessive use of leave which adversely affected his ability to effectively plan and execute duties as assigned. c. Based on phone calls that have been made to a number of subordinates after hours there was at the very least an indication of alcohol abuse. d. Previous attempts to address behavioral concerns with him, specifically on 15 September 2012, he denied having any personal issues that affected his ability to perform at the work place in a manner expected by the command. 11. The applicant was advised that if he desired to question the propriety of the evaluation, he could contact the MSARNG Inspector General (IG) or the Office of the IG for the Department of Defense. He was also advised of his right to be provided an attorney by the MSARNG. 12. On 29 April 2013, the applicant was counseled for his absence from work on 29 April and his failure to inform his supervisor. 13. On 1 May 2013, COL H provided an MFR summarizing the counseling session and statement given to the applicant on 1 May 2013. The MFR states: At 0900 I gave the [the applicant] a counseling statement dated 30 April 2013. I verbally reviewed the intent of the counseling statement was to change the behavior of the absences and to indent/seek help for the issues causing the tardiness/absences. During this counseling session [the applicant] seemed very unconcerned/passive about the issues of the counseling points. He also stated that the TAG [The Adjutant General] stated "He was not going to get fired this close to hitting sanctuary." His demeanor seemed to indicate that I was incorrect in holding him accountable for his attendance. [The applicant] asked for a copy of the counseling statement and stated that he did not know if he was going to sign it or not. 14. A mental health evaluation diagnosis/prognosis, dated 2 May 2013, shows the applicant was diagnosed with PTSD, chronic, and major depressive disorder, recurrent. This document also shows the following entries: a. Prognosis: The applicant's diagnosis of PTSD is contributing to the work related difficulties identified by his command, particularly excessive use of leave; however, there is minimal documentation suggesting that work related tasks have not been accomplished. It is unclear the level of severity of his diagnosis due to inconsistent information obtained from collateral sources for the purpose of this exam. It is recommended that he be referred for an MEB for processing through the DES since his conditions were acquired in the line of duty. He is encourage to continue participating in individual therapy to assist him in improving his coping skills and managing symptoms of PTSD and increased frequency of visits is recommended. The applicant should be evaluated by his military medical unit and should provide regular updates in regard to his treatment progress to ensure that his MEB accurately reflects his current symptoms. b. Recommendations to the commanding officer: The service member is returned to his command with the following recommendations: (1) Due to inconsistent information provided, it is unclear if a substance abuse problem exist. Command is encourage to refer the service member for an Army Substance Abuse Program (ASAP) evaluation if they have concerns regarding alcohol abuse. (2) The applicant is encourage to continue in treatment with his established mental health provider. His command is encourage to work with the service member to accommodate his participation in his treatment. Command is encourage to set clear expectations in regard to work schedules and leave policy and manage deviation from established standards administratively. Deficiencies in work performance should be documented and handled administratively. (3) The applicant is mentally responsible for his behavior and possesses sufficient mental capacity to understand and cooperate intelligently as a respondent in any administrative proceedings that might involve him if necessary; any misconduct should be managed administratively. c. Recommendations to member: The applicant is strongly encouraged to continue to participate in mental health care to treat his symptoms and improve his ability to manage his current life stressors. In addition, he is encouraged to consult with a psychiatrist for an evaluation of his medication. 15. On 6 May 2013, the applicant was counseled for his non-compliance with previous counseling regarding absence and attendance issues. On 3 May 2013, the applicant departed at 0930, he was absent without leave. He made no attempt to notify his supervisor of his absence. 16. On 10 May 2013, COL H provided an MFR documenting an unauthorized absence by the applicant on 10 May 2013. 17. On 16 May 2013, COL H provided another MFR documenting the applicant's absence during the period 14-15 May 2013. The MFR states: At 1000 Tuesday 14 May, the undersigned called the MRO office while conducting annual training with the 168th Engineer Brigade for routine check in. At that time, I discovered that [the applicant] was not at work. Further investigation revealed that he was in St. Dominic's hospital at the recommendation of the Pearl Police Department. The circumstances leading up to the hospitalization were [the applicant] was involved in some type of disturbance/incident and was under the influence of either alcohol/drugs. During this two day absence [the applicant] made no attempt to contact me regarding his status, violating previous MFRs and counseling statements which he was required to advise me of his absence from duty. This above situation developed into [the applicant] being admitted to the Fort Rucker ASAP. 18. A DD Form 3349 shows that on 18 May 2013, the applicant was issued a permanent physical profile by the MSARNG Office of the State Surgeon based on a diagnosis of PTSD and depression. This form also shows that he required an MEB due to not meeting retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). The form further shows the following comments: Service member has undergone evaluation at Kessler Air Force Base by neuropsychologist with recommendation of MEB and permanent profile for diagnoses noted. New data from PCP reveals ongoing treatment for several years. aon trazodone, Xanax, Wellbutrin, Cymbalta, and counseling. Currently in involuntary inpatient treatment. Will require MEB. 19. A second DA Form 3349 shows that on 7 June 2013, the applicant was issued a temporary physical profile for PTSD by the Behavioral Health at Lyster Army Health Clinic, Fort Rucker, with an expiration date of 5 September 2013. The form does not indicates whether he met retention standards or that an MEB was necessary. The form also shows the following entries: a. Expected date of fully mission capable: 5 September 2013 b. Justification comments for fully mission capable: MEB is in progress. Service member is not expected to return to duty. c. Recommend reassignment away from current stressors in Jackson, MS. Service member has become estranged from his wife and perceives his current chain of command climate to be hostile. He should be moved closer to his family supports in Hattiesburg, MS. Strongly recommend limited duty with light leadership responsibilities. Recommend access to behavioral health services and sobriety supports. 20. On 11 June 2013, COL H provided an MFR documenting the applicant's absence on 11 June 2013. The MFR states that the applicant was no longer in a residential treatment program and had not been advised that he was excused or otherwise not required to work. 21. In a memorandum dated 12 June 2013, issued by the The Adjutant General's Office, Mississippi National Guard, the applicant was informed of the intent to remove him from the AGR program. The memorandum states: I have carefully considered all the circumstances and documentation regarding your situation and find that it is evident that you are unwilling to conform to the work schedule required of the Mobilization Readiness Office [MRO]. You have consistently been late for or requested leave not in accordance with the MRO policy, and have established a pattern of these events. You were given a counseling statement on 30 April which gave you 30 days in which correct these deficiencies; however you did not conform as evidenced by your documented absences on 3 May, 10 May, 4-15 May, and 11 June. These actions continue to bring discredit to yourself and the J3 section. This organization cannot function with team members that have an aphetic and passive view of their duties and responsibilities. I have no option but to request your involuntary separation from the AGR Program. In accordance with Paragraph 9-4d(2), Mississippi National Guard Pamphlet 600-5, you will acknowledge receipt of this memorandum by endorsement and you will be given 15 days from the receipt to prepare and submit a rebuttal or comment and return the documentation to me. JAG [Judge Advocate General] assistance is available to you in preparing your rebuttal or comment upon your request. 22. It appears the second and/or subsequent pages of the memorandum are not available. 23. On an unspecified date, the applicant submitted a 6-page memorandum, subject: Rebuttal to Notification of Intent to Involuntary Separate from the AGR Program, in which he expressed his disagreement to the reasons for his involuntary separation from the AGR program based on his outstanding performance as shown on his Officer Evaluation Reports (OER), the mischaracterization of his absences, his diagnoses of PTSD, depression, anxiety, and insomnia, and because his counseling record failed to show dereliction of duty, negligence, or misconduct. 24. As enclosures to his memorandum of rebuttal, the applicant provided 14 OERs, a memorandum dated 13 May 2010, subject: Request for Medical Records, a DD Form 3349, dated 7 June 2013, and a leave log. 25. On 30 June 2013, the applicant's counsel, who was serving as the MSARNG Senior Defense Counsel, provided a 5-page memorandum on behalf of the applicant responding to the notification for involuntary separation from the AGR Program. Counsel essentially contended that the applicant's absences were misrepresented and that his command was aware of the circumstances. Counsel also argued the applicant should be retained for further treatment. Counsel concluded by stating that "a careful analysis of the factors to be considered does not meet the preponderance of the evidence standard for involuntary separation. The absences noted and the events surrounding same while certainly worthy of focus and attention, simply do not rise to a level warranting involuntary separation. [The applicant] should be placed on a path of continued treatment at least until such time as his medical evaluation board runs its course. The separation action sought is misguided and punitive in nature. There are other available, and less punitive, rehabilitative efforts which have not yet been considered, including reassignment, as noted in Dr. Wyatt's physical profile as recent as 7 June 2013." 26. The applicant's complete separation proceedings are not available. However, his records contain orders, issued by the MSARNG on 19 July 2013, directing his release from active duty in AGR status effective 30 July 2013. His records also contain orders, issued on 16 August 2013, directing his discharge from ARNG and transfer to the Retired Reserve effective 31 July 2013. 27. The applicant's DD Form 214 shows he was released from active duty on 30 July 2013 under the provisions of Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges) paragraph 2-25a (Rules for processing involuntary release from active duty due to nonselection of AGR continuation). The DD Form 214 also shows he was credited with completion of 17 years, 11 months, 3 days of active service. The DD Form 214 further shows in block 18 the entry: "NGR [National Guard Regulation] (AR) 600-5 [The AGR Program Title 32 Full Time National Guard Duty (FTNGD) Management], Chapter 6-5c; Involuntary Separation." 28. The applicant's NGB Form 22 shows he was discharged from the ARNG and transferred to the Retired Reserve on 31 July 2013. He was credited with 26 years and 11 days of total service for pay. 29. Medical documentation provided by the applicant show he was diagnosed with PTSD, depression, and sleep apnea while he was in the service. 30. The applicant's 14 OERs provided, covering the period 7 January 200 through 31 January 2013, show his performance was consistently rated as "outstanding" and "best qualified" with no indication he was unable to perform his military duties due to a medical disability. 31. The documentation from the VA shows he was granted service-connected disability compensation for PTSD rated 100 percent disabling. 32. On 12 December 2019, the Army Review Boards Agency clinical psychologist/medical advisor provided an advisory opinion. The medical advisor states: a. Based on a thorough review of available records, the applicant did not fail retention standards in accordance with AR 40-501 (Standards of Medical Fitness), Chapter 3, paragraphs 31-37. Records do not demonstrate symptoms were persistent and reoccurring to the extent they required extended or recurrent hospitalizations, unrelenting duty limitations, or ongoing interference with effective military performance. Rather, his OERs continued to rate him as outstanding and best qualified and he successfully completed service schools. b. Medically, he had only begun treatment and documentation does not support he was impaired to the extent a trial of treatment should have been bypassed. Moreover, his last psychiatric profile changed to temporary; the provider believed he had the potentially to be fully restored with treatment. Furthermore, a command directed mental health evaluation indicated he was responsible for his misconduct clearing him for administrative action and behavioral health conditions did not impair his functioning to the extent he was not responsible for his choices. Additionally, he and the MSARNG Senior Defense Counsel rebutted the separation noting he was completing his work with no impact on the mission, a behavioral health provider believed he could be fully returned to duty in two months, and procedurally Soldiers return to duty while undergoing treatment to determine if they can be restored or are unfit for service. c. Although his diagnoses are noted, given the available documentation, he did not fail psychiatric retention standards and it is more likely than not IDES would have denied the referral recommending a trial of treatment before another submission. However, given his providers felt his case warranted an initial review, and there is no indication this occurred, it is recommended his case be referred to the DES for review. A copy of the complete medical advisory was provided to the Board for their review and consideration. 33. The applicant and his counsel were provided a copy of the advisory opinion on 16 December 2019 and given the opportunity to submit comments. They did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his participation in and correspondence specific to his removal from the AGR program as a result of an involuntary separation. The Board considered the performance evaluations in the applicant’s records, the in-service medical documentation regarding treatment, medical profiles and references to MEB processing, and the VA documents showing his service connected disability compensation. The Board considered the review and conclusions of the medical advising official and agreed with the recommendation to permit the applicant the opportunity for processing through the disability evaluation system. The Board found insufficient evidence to support the applicant’s reinstatement in the AGR or to add service credit to result in a length of service retirement. Based on a preponderance of evidence, the Board determined that the applicant’s record should be forwarded for review and consideration of a medical separation or retirement. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 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 referring his records to the Office of The Surgeon General for review: a. If a review by the Office of The Surgeon General determines the evidence supports further actions, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to his discharge. b. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be separated or retired for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay. 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 any relief without benefit of the review described above. 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, U.S. Code, 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. NGR 600-5, paragraph 6-5 states commanders have the primary responsibility to maintain good order and discipline. Involuntary release from AGR service is a mechanism for TAGs to ensure the effective administration, operation, and training of the National Guard. Commanders and supervisors may initiate involuntary release from AGR service when a Soldier’s substandard duty performance or persistent inefficiency hinders the administration, operation, or training of the National Guard and when corrective action or rehabilitation efforts have not provided the necessary results, or for any other reason permitted by Army or ARNG regulations for separation from service, withdrawal of Federal Recognition, release from active duty or disqualification for subsequent AGR duty. Single acts of misconduct including but not limited to those involving violence, hostile work environment, integrity, or moral turpitude may warrant initiating release without prior corrective action or rehabilitation. Commanders determine if the basis of a proposed involuntary release warrants release from FTNGD and separation from the ARNG. a. Guidelines for involuntary release. Counseling or a letter of reprimand. Commanders or supervisors will notify the Soldier through written counseling(s) or reprimand(s) when the Soldier’s degree of efficiency, manner of performance of duty, military conduct, or the commission of any derogatory act makes such action appropriate. Commanders and supervisors will retain the documents reflecting the corrective or rehabilitative efforts. Corrective or rehabilitative counseling will include notice that the Soldier’s conduct, performance or inefficiency may result in in voluntary release from FTNGD. b. General Considerations. When deciding whether to initiate procedures for involuntary release, the following factors may be considered: (1) The seriousness of the events or conditions that form the basis for initiation of release proceedings, and the effect of the Soldier’s continued retention on military discipline, good order, and morale. (2) The likelihood that the events or conditions will continue or reoccur (3) Whether the actions of the Soldier resulted or are likely to result in an adverse impact on accomplishment of unit missions. (4) The Soldier’s ability to perform FTNGD in a satisfactory manner. (5) The Soldier’s potential for further military service. (6) The Soldier’s military service. This includes past contributions to the military, assignments, awards and decorations, evaluations, ratings, letters of reprimand or admonition, counseling records, records of nonjudicial punishment, records of involvement with civilian authorities; and any other matters deemed relevant by the separation authority. (7) The possibility that reassigning the AGR Soldier will improve the Soldier’s performance. c. Soldiers in sanctuary status by virtue of reaching greater than 18 but less than 20 years of qualifying active service will have their involuntary release from active duty packet including, The Adjutant General's recommendation, submitted through ARNG- HRH for approval by the Secretary of the Army. d. Paragraph 6-6 states that in addition to release from active duty pursuant to this regulation, the command may initiate discharge from the ARNG for the same underlying basis in accordance with applicable regulation. 3. AR 600-8-24, paragraph 2-25 states: a. An AGR officer on an initial period of duty will be separated from active duty 90 calendar days after notification of continuation board action of nonselection or at the end of the initial period of duty, whichever is later, unless earlier release is requested by the officer. An AGR officer on a subsequent period of duty who is not recommended for continuation will be released from active duty 90 calendar days after notification of continuation board action unless earlier release is requested by the officer. b. For AGR officers who are not recommended for continuation, Chief, NGB; Chief, Army Reserve; and State adjutants general are authorized to order release from active duty under this section. The authority may not be further delegated. c. The AGR officers on active duty who are within 2 years of eligibility for military retirement will ordinarily not be involuntarily released from active duty until eligible for such retirement. However, the Secretary of the Army may approve the release from active duty of officers when there are unusual circumstances and their retention is not considered to be in the best interests of the Army. 4. AR 40-501 provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 5. 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. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 6. AR 635-40 establishes the Army DES 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. The regulation provides that 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. 7. Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 8. AR 15-185 (ABCMR), paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012251 17 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1