IN THE CASE OF: BOARD DATE: 30 March 2022 DOCKET NUMBER: AR20200008943 APPLICANT REQUESTS: * Add his Line of Duty Investigation (LODI) determination in his service record * Initiate a Medical Evaluation Board (MEB), incorporating the applicant’s LODI APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal statement, with exhibits FACTS: 1. The applicant did not file within the three-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, in effect, a. The events that led to the medical retirement occurred during drill weekend in January 2002. He fell headfirst into the loader hatch of an M1 tank, resulting in injury to his face and back. On 26 February 2002, he underwent a medical evaluation of his injuries. The following year, on 8 November 2003, he was placed on a profile that precluded him from wearing a rucksack, a helmet, and carrying or firing a rifle. b. In February/March of 2010, he was issued a permanent profile that precluded him from carrying and firing a weapon, wearing a loaded backpack (48 lbs) for two miles, wearing a Kevlar helmet, creating individual fighting positions, perform 3-5 second full run rushes while under enemy weapon fire, 2-mile run, and timed sit-ups. c. In the face of what he believes was obviously an “In the Line of Duty” injury, he sought to have the Ohio Army National Guard (OHARNG) initiate a LODI; however, no action was taken. As a consequence of the inaction by the OHARNG and the absence of a LODI, Veterans Affairs (VA) found no-service connection for his injuries. 3. The applicant provides the following exhibits: a. Tab A – Army National Guard Retirement Points History Statement, covering the period of 6 September 1986 through 8 March 2011, reflects he has a total of 3451 total points for retirement pay and 19 years of creditable service for retirement pay. b. Tab B – NGB Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the Army National Guard of Ohio and as a reserve of the Army on 8 March 2011 under the provisions of National Guard Regulation (NGR) 600-200, paragraph 6-35a, expiration of term of service (ETS). He served 13 years of net service this period. c. Tab C – State of Ohio Adjutant General’s (AG) Department memorandum, dated 12 August 2011, states, “he elected to be transferred to the Retired Reserve. This was based on medical retention disqualification in accordance with NGR 600-200, chapter 6, paragraph 6-351(8).” d. Tab D – State of Ohio AG Department orders 231-911, dated 19 August 2011, discharges him from the Army National Guard and assigned him to the U.S. Army Reserve Control Group (Retired), reason of medical retirement, with an effective date of 8 March 2011. e. Tab E –State of Ohio AG Department memorandum, dated 12 November 2010, Subject: Notification of Medical Disqualification for Retention with Over 14 Years in Service, notifies him that a review of his Army medical records by the State Surgeon, to include his current retention physical and permanent profile, revealed that he no longer meets the Army medical standards for retention. Further stating, he must elect either discharge from the ARNG, and as a reserve of the Army, transfer to the Retired Reserves, or appeal to a non-duty related Physical Evaluation Board (PEB) for retention ruling only. f. Tab F through I – VA Forms 21-4138 (Statement In Support of Claim), written by witnesses to the events that led to his injuries during drill weekend in January 2002. g. Tab J – Towne Physical Therapy Initial Evaluation (3 pages), dated 26 February 2002, addressed to Dr. Mi___De___, states that he (the applicant) was seen in their office for evaluation and treatment. The evaluation provides a summary of the applicant’s medical history (past and present), special tests conducted, specific additional comments, treatment regimen, goals of physical therapy, and prognosis. h. Tab K – DA Form 3349 (Physical Profile), issued on 8 November 2003, shows the applicant was issued a permanent profile; however, item 7 (functional activities) indicates he was able to wear backpack and helmet, carry and fire rifle, and marching up to 5 miles. i. Tab L – Two Consultation Sheets (page 2 of 2), dated 26 February 2010 and 2 March 2010. Both sheets indicate “No,” with the duration of restriction “Permanent” written for the following functional activities: * Able to carry and fire individual assigned weapon (recoil and minimum 8 pounds in weight) * Able to move with a “fighting load” (48 pounds) at least 2 miles * Able to wear Kevlar helmet (3 pounds) * Able to construct an “individual fighting positions” (dig, fill and lift sand bags, etc.) * Able to perform a timed 2-mile run test event * Able to perform a timed sit-ups test event * Healthy without any medical condition that prevents worldwide deployment j. Tab M – VA Rating Decision, dated 19 December 2014, reflects he was awarded service connection for tinnitus, with an evaluation of 10 percent. However, a service connection for bilateral hearing loss, degenerative disc disease (lumbar spine) and degenerative disc disease (cervical spine) was denied. k. Tab N – VA Form 21-0958 (Notice of Disagreement), dated 30 December 2014, shows he submitted a disagreement regarding his cervical spine injury (service connection and evaluation of disability) and worsened lumbar and thoracic due to injury (service connection and evaluation of disability). 4. A review of the applicant’s available service record shows: a. He enlisted in the Army National Guard on 9 March 1998. b. According to his National Guard Bureau (NGB) Form 22, he was honorably discharged from the Army National guard of Ohio, and as a Reserve of the Army on 8 March 2011. 5. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC), Chapter 61, (10 USC 61) and DODD 1332.18. It 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 or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. The objectives of this regulation are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability; and, provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier are protected. 6. MEDICAL REVIEW: The Army Review Boards Agency (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: a. The applicant, now deceased, had again applied to the ABCMR requesting a change in the reason for his discharge and a discharge upgrade. He states: “I was deemed AWOL {absent without leave}. But I was injured and seen in a hospital in San Pedro, CA, at a Navy facility, then Long Beach Veterans Hospital. They transferred me to the Presidio in San Francisco. I was not AWOL.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 23 May 1966 and received an under other than honorable conditions discharge on 27 October 1967 under the provisions provided in paragraph6-A(1)AR 635-212, Discharge – Unfitness and Unsuitability (15 July 1966): Unfitness. The separation program number 28B denotes the reason for separation as “Unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities.” c. Because of the period of service under consideration, there are no encounters in AHLTA or documents in iPERMS. d. The applicant stated that in November 1966 he went home to Los Angles on leave during which time he fell and broke his back. He states he returned to Ft. Bragg on 20 February 1967. The applicant was on serial temporary physical profiles form 20 February 1967 thru 25 July 1967 after having sustained two stable lumbar compression fractures. e. The records show the applicant received non-judicial punishment for multiple infractions form May 1966 thru August 1967. Infractions included failures to report and failures to obey multiple orders from both non-commissioned and commissioned officers. The most significant of these was for assaulting a fellow Soldier on 14 July 1966, a violation of Article 128 of the UCMJ. f. On 19 September 1967, his company commander recommended the he be discharged under paragraph 6a of AR 635-12: “This soldier was assigned to this unit on 27 July 1967 for rehabilitation. Initially, he performed his duties in a satisfactory manner; however, he soon became a problem to himself and the unit. He constantly complained of back pain and was referred to medical authority on numerous occasions. A complete medical profile evaluation was conducted and he was returned to full duty without any physical limitation. This soldier continues to go on sick call, attempts to avoid field duty, and is unwilling to perform the required tasks expected or a Soldier. In less than 2 months On one occasion, he was evacuated from a field maneuver because he complained of back pain, yet that weekend he was observed exerting considerable physical activity with a 50-pound surf board at Myrtle Beach, South Carolina with no apparent difficulty …” g. A statement from a fellow Soldier provided evidence for the commander’s accusation: PFC W., PFC {Applicant}, and myself, PFC M., spent 11, 12, and 13 August 1967, swimming, surfing, and staying up just about all weekend without sleep. PFC {Applicant} did most of the surfing. He was in the water most of the day along with PFC W and myself. Surfing takes much more work than going out in the field carrying an M-60 {machine Gun, Caliber 7.62 mm}.” h. The applicant’s discharge was approved by the commanding general of the 82nd Airborne Division on 19 September 1967. i. There is no evidence the applicant had a medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness, and been a cause for referral to the DES prior to his discharge. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to his discharge. j. There are no encounters or diagnoses listed in JLV. k. It is the opinion of the ARBA medical advisor that a neither a change in the reason for his discharge, a discharge upgrade, nor a referral to the DES is warranted. BOARD DISCUSSION: After review of the application and all supporting documents, the Board found the relief is not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and medical advisory, the Board concurred with the advisory official finding there was no evidence the applicant had a medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations; or that would have failed the medical retention standards and been a cause for referral to the DES prior to his discharge. The Board determined there is insufficient evidence that shows a LOD and/or a medical retirement were warranted during his period of active service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X 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) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC), Chapter 61, (10 USC 61) and DODD 1332.18 a. Paragraph 3-4b states, line of duty (LD) decisions are reached according to policies and procedures prescribed in AR 600–8–4. Copies of LD decision, DA Form 2173 (Statement of Medical Examination and Duty Status), or DD Form 261 (Report of Investigation—Line of Duty and Misconduct Status) must be included in the official records of the case. b. Paragraph 4-10 states, the medical 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 AR 40–501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008943 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1