IN THE CASE OF: BOARD DATE: 25 February 2021 DOCKET NUMBER: AR20200001598 APPLICANT REQUESTS: in effect, physical disability retirement and personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Personnel Records Center letter, dated 26 May 2017 FACTS: 1. The applicant did not file within the 3-year time frame 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: a. His [unspecified] claim was based on his DD Form 214 (Certificate of Release or Discharge from Active Duty), which does not reflect his entire career in the Army. You will see he has a total of 17 years, 9 months, and 28 days of service in the military including his Army National Guard (ARNG) service. b. His unit had a drill day coming up on 20 December 1997, but on 17 December 1997 he had a heart attack while he was still in the service. He doesn’t have any complaints about his heart. It just happened like that. c. In 2002 he filed for a compensation benefit. The ARNG sent him an identification card, but no compensation benefit along with it. They said his condition was not service-connected, but he did not get out of the service until he was discharged from the ARNG on 30 June 1998 and his Reserve obligation was not terminated until 18 July 1999. He believes the VA made an unjust decision on 14 November 2018, in effect, in denying his claim for service-connected disability. 3. The applicant’s DD Form 214 shows he enlisted in the Regular Army on 20 September 1979 and served for 3 years, 11 months, and 21 days until his honorable release from active duty and transfer to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 21 October 1983 due to the expiration of his term of service. Item 5 (Date of Birth) reflects his birthday as . 4. The applicant’s National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement), dated 21 August 1998, shows he remained assigned to the USAR Control Group (Reinforcement) until his enlistment in the ARNG on 19 July 1985. 5. His records contain multiple DA Forms 2166-7 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) issued while the applicant was in the ARNG, which show the following: a. His NCOER covering the period from December 1993 through November 1995 shows he received a “Needs Improvement (Some)” rating for Physical Fitness and Military Bearing with the remark he was in the weight control program and passed the Army Physical Fitness Test (APFT) in December 1993. There are no other remarks or ratings reflecting anything less than success. b. His NCOER covering the period from December 1994 through November 1994 shows he received a “Needs Improvement (Some)” rating for Physical Fitness and Military Bearing with the remark he was in the weight control program and passed the APFT in April 1995. There are no other remarks or ratings reflecting anything less than success. c. His NCOER covering the period from December 1995 through November 1996 shows he received a “Success” rating for Physical Fitness and Military Bearing and passed the APFT in May 1996. He received a “Needs Improvement (Some)” rating for Training with the remark he needed to focus on individual subordinate training. 6. A DA Form 1059 (Service School Academic Evaluation Report), dated 11 July 1997, shows the applicant successfully attended and completed Phase II, Wire Systems Installer Course from 29 June 1997 through 11 July 1997. 7. The applicant’s NCOER covering the period from December 1996 through November 1997 shows he received “Needs Improvement (Some)” rating for Physical Fitness and Military Bearing and that he did not perform the APFT. He received a “Needs Improvement (Some) rating for Training with the remark he did not fire rifle qualifications. 8. The applicant’s available records do not contain documentation pertaining to his heart attack suffered in December 1997 or any other documentation pertaining to physical disability. 9. On 21 August 1998, the applicant was issued a 15-Year Notification of Eligibility (NOE) for Retired Pay at Age 60 with 15 Years of Service (15 Year Letter) which shows: a. He was notified of his early qualification for eligibility to receive non-regular retired pay upon attaining age 60. b. To be eligible as a Selected Reservist for early qualification for non-regular retired pay upon attaining age 60 he must have the following: * completed at least 15 years of qualifying service * no longer met the qualification for membership in the Selected Reserve solely because he was unfit because of physical disability and his disability was not the result of his intentional misconduct, willful neglect, or willful failure to comply with standards and qualifications for retentions * performed the last 6 years of qualifying service in the Selected Reserve * requested transfer to the Retired Reserve 10. The applicant’s NGB Form 23B, dated 21 August 1998 shows he completed 16 years, 1 month, and 16 days of creditable service for retired pay, of which over 12 years was served in the ARNG. 11. Tennessee Army National Guard Orders 162-001, dated 21 August 1998, honorably discharged the applicant from the ARNG and transferred him to the USAR Control Group (Retired Reserve) effective 1 July 1998 and noted he would be eligible for retired pay at age 60. 12. The applicant’s NGB Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the ARNG under the provisions of Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative Separations) prior to his terminal date of Reserve service obligation and transferred to the USAR Control Group (Retired Reserve) effective 30 June 1998. He was credited with 17 years, 9 months, and 11 days of total service for pay. 13. U.S. Army Human Resources Command Orders C05-094750, dated 27 May 2020, retired the applicant and placed him on the retired list effective , at the age of 60. 14. Based on the applicant’s condition the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. The ARBA Medical Advisor was asked to review this case. Documentation reviewed included 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). The ARBA Medical Advisor made the following findings and recommendations: 2. From the applicant’s DD Form 149, it appears he is requesting additional time be added to his length of service. No clear medically related request is identified. The applicant mentions he had a heart attack on 17 December 1997 while he was still in the service but then states “I don’t have any complaints about my heart. It just happened like that.” He then claims he filed for a compensation benefit in 2002, presumably for his heart, stating he didn’t get out of the service until 1998, which was after his heart attack. 3. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. This former drilling Tennessee Army National Guard Soldier was honorably discharged on 30 June 1998 under the authority provided in paragraph 8-27u of NGR 600-200, and was retried and authorized retired pay under 10 United States Code, Section 12731, on 28 March 2020. 4. The applicant’s heart attack, having occurred on 17 December 1997, was on a Wednesday, and appears not to have occurred while the applicant was in a qualified duty status. Hence, if the condition went on to fail the medical retention standards of AR 40-501, Standards of Medical Fitness, he would not have been eligible for duty- related Disability Evaluation System processing. 5. It does appear that at some point, prior to his discharge in March 1998, he did develop a non-duty related medical condition which was disqualifying for continued service. The applicant received a Notification of Eligibility for Retired Pay at Age 60 as a 15 year notice of eligibility on 21 August 1998. This allows a member of the Selected Reserve with 15 but less than 20 years of service, and who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit due to physical disability not incurred in the line of duty or due to gross negligence, to otherwise meet the service requirements for years of service computed under 10 U.S. Code § 12732. The member with a “15-year Notice of Eligibility” is authorized a non- regular retirement. 6. If the applicant is seeking to have the ABCMR assist him with obtaining VA service connection for a heart condition, that is not something the Board can assist with. The Veterans Benefits Administration operates under authority granted by Congress to the Department of Veterans Affairs (Title 38, United States Code), and its activities are executed under a different set of laws than those of the Department of Defense and the Military Services (Title 10, United States Code). As such, the ABCMR has no authority over or the ability to direct actions of the Department of Veterans Affairs. 7. It is the opinion of the Agency Medical Advisor that there is no actionable request and therefore the application should be denied. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. The Board further found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the applicant did not have a medical condition incurred in the line of duty that warranted referring him to the Disability Evaluation System. Based on a preponderance of evidence, the Board determined his discharge and transfer to the Retired Reserve with eligibility for retired pay at age 60 were not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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. 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 (Physical 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 Army Regulation 40-501 (Standards of Medical Fitness), 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 MOS 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 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. c. 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 establishes 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 an MEB and will be referred to a 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 AR 135–175 (Separation of Officers) or Army Regulation 135–178 (ARNG and Reserve 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. Paragraph 9-12 states Reserve Component (RC) Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Reserve Component Soldiers with nonduty related medical conditions, MEBs are not required and cases are not sent through the PEBLOs (Physical Evaluation Board Liaison Officers) at the military treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USARC Regional Support Command or the U.S. Army Human Resources Command Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. 5. 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. 6. Title 10 USC, section 12731b (Special rule for members with physical disabilities not incurred in the line of duty), enacted 23 October 1992, provides in pertinent part that in the case of a member of the Selected Reserve of a RC who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes as of 1 October 1991. This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC. 7. Army Regulation 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. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001598 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1