IN THE CASE OF: BOARD DATE: 9 June 2022 DOCKET NUMBER: AR20210010635 APPLICANT REQUESTS: * his discharge orders, dated 17 December 2020, placing him in the United States Army Reserve (Retired Reserve) be changed * correction of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 9 September 2020, to show a medical discharge * when the above errors have been corrected, a medical discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Memorandum, Subject: Letter of Instruction-Non-Duty Related (NDR) Case Submission to Physical Evaluation (PEB): Clarification of Procedures, Required Information, and the NDR PEB Memorandum * Memorandum, Subject: Determination of Medical Disqualification for Retention in the MSARNG (Mississippi Army National Guard) * Developmental Counseling * NDR Sample Memorandum * FERS (Federal Employees Retirement System) Benefit Estimate Report Information * Congressional Interest * Memorandum, Subject: The applicant PEB; Reserve Noncommissioned Officer (RNCO) Letter * Congressional Letter * Orders 0000889704 * NDR Sample * Sworn Statement, Staff Sergeant/SSG CH__ * FERS Chapter 15 Retirement and Insurance Information * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings * National Guard Bureau Advisory Opinion (FERS SF 3107 (Application for Immediate Retirement) and SF 3112 (Applicant’s Statement of Disability) Forms FACTS: 1. The applicant states his discharge order dated 17 December 2020 needs to be changed. His DA Form 199 election, dated 9 September 2020, needs to be changed. Once the errors have been corrected the discharge order will need to reflect a medical discharge. These elections on the DA Form 199 were made in error by the fact that neither he nor his Readiness Noncommissioned Officer (RNCO) received any counseling. Because no counseling was received this error has caused him much financial burden. He qualified for a disability retirement from a Federal Technician position. He believes the wrong election made on his DA Form 199 caused the discharge order not to reflect the memorandum from 7 February 2019 (Determination of Medical Disqualification for Retention in the MSARNG). a. Mr. P__, the veteran’s representative with Congressman TK__/BG office also stated since there are no definitions or explanations of what each election is on page 4 that he would have made the same election. He along with his Readiness NCO CJ__ thought that by selecting the option to concur and waive a formal hearing of his case they were simply agreeing with the attached memorandum finding him unfit for continued military service. During his Inspector General (IG) complaint he was not represented by an officer regarding his complaint nor were efforts to have the IG consult with the RNCO as to whether or not he received counseling after asking them to do so multiple times. b. He feels there may be some confusion as to what he is trying to get accomplished here. He is not seeking medical disability from the military as far as saying this medical condition is duty related, which it is not. He did qualify for his 60/40 disability retirement. What he has been offered and is in the process of being completed is greatly different from what he did by law qualify for from the human resources (HR) side of the house (federal technician) once he is allowed to start this redo process with this DA Form 199. c. He wants his National Guard retirement to begin at age 60. He has a statement from another service member (SM) in A Company 1-149 that heard the Readiness NCO Sergeant First Class /SFC J__ told him he received no counseling. This conversation was on 8 April 2020. As hard as this may be for some to believe once the applicant received the medical memorandum finding him unfit, he then waited for the next step which was to get the PEB form and make the election as stated earlier. He never sat down with anyone else except SFC J__ during this process. NO COUNSELING. Yes, they both signed, they did. He is admitting he made a mistake after the fact. However, he feels someone should have caught the fact that he is/was a Federal Technician other than SFC J__, G1 for sure and ask why would a Federal Technician make such a catastrophic election that would disqualify him from his 60/40 HR Disability Retirement. 2. The applicant provides: a. Memorandum, Subject: Letter of Instruction-Non-Duty Related (NDR) Case Submission to Physical Evaluation Board (PEB); Clarification of Procedures, Required Information, and the NDR PEB Memorandum, dated 25 July 2018, U.S. Army Physical Disability Agency (USAPDA), Arlington, VA, provided information on the procedure and examples. b. Memorandum, Subject: Determination of Medical Disqualification for Retention in the MSARNG, dated 7 February 2019, stated his disqualifying medical condition was lower back injury/pain. He had over 20 years of credible service towards retirement. Therefore, he might elect to be retired from the National Guard and he would be entitled to retirement benefits not earlier than age 60. Additionally, if it was found that he was a federal technician. If discharged from the National Guard, you will also be separated from federal employment within 30 days of your discharge. You should contact the MSARNG Human Resources Office (601-313-6121) for additional information and instructions regarding your federal technician employment. c. Developmental Counseling form, dated 20 November 2019, SFC CJ__, which shows the RNCO counseled the applicant that he had been identified by a medical provider with a medical condition or defect (low back injury/pain) that disqualified him from further military service and his ineligibility for retention, in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). (1) His available personnel records indicated he had over 20 years of credible service towards retirement. He might elect to be immediately retired from the Army National Guard (ARNG) and would be entitled to retirement benefits not later than age 60. Additionally, if it was found that he was a federal technician, and if retired or discharged from the National Guard he would also be separated from federal employment within 30 days. He should contact the Mississippi ARNG Human Resources Office for additional information and instruction regarding his federal technician employment. (2) The applicant willfully chose Option D-you are a Technician and may be eligible for additional benefits following the determination your fitness for continuing military service. No disability rating or compensation will be awarded at this board. If you choose this option, you must provide all of the information on the PEB package checklist to the Office of the State Surgeon, ATTN: PEB Case Manager, 1420 Raymond Road, Jackson, MS 39204, not later than the suspense date. If any of the cited disqualifying medical conditions were incurred while on orders or during drill status you must provide a valid DA Form 2173 (Statement of Medical Examination and Duty Status) with your PEB packet. Be advised that if the PEB finds you fit for duty or retainable but non-deployable, your case will be forwarded to your unit and the MSARNG J1 with the recommendation to process you for separation from the National Guard. By signing the form, he acknowledged that he understood the options presented to him and the consequences of not complying with the stated requirements and suspense date. He and the RNCO signed the form on 20 November 2019. d. Memorandum, Subject: Non Duty Related Case: The applicant, USAPDA, dated 20 September 2020, states the PEB determined the applicant was unfit for duty. The applicant should be advised of the final PEB determination and provided a copy of the DA Form 199. e. A FERS Benefit Estimate Report, dated 1 March 2021, the applicant states “this is what’s being offered because of the wrong election made on the DA Form 199. I qualify for the FERS Retirement” and FERS Retirement Estimate Report, dated 4 November 2020 shows “what I should be getting once changed.” f. FERS, Chapter 15, Retirement and Insurance information, 15-5 (Discontinued Retirement Involuntary Loss of Military Membership, the applicant states through “no fault of your own” Federal law requires Excepted Service personnel to maintain membership in the National Guard as a condition of continued employment and requires prompt termination upon loss of military membership in the Active Army or Air National Guard g. A congressional letter, dated 30 April 2021, states the applicant’s transfer from the MSARNG to the United States Army Reserve (USAR) Retired was effective 17 December 2020. In order the complete this process the applicant completed a DA Form 199 where he was to select 1 of 2 options in Section IX (Soldier’s Elections). While completing this form he made a selection in Section IX while not understanding the consequences of that action. The example is when he, under the guidance of the Readiness NCO, selected (I concur and waive a formal hearing of my case on the DA Form 199), they thought they were concurring with the memorandum dated 7 February 2019 and simply did not disagree with the finding of lower back injury/pain. They were under the impression this would be on his discharge order. This is only one example of the confusion by each Soldier regarding the process. According to Memorandum dated 26 July 2018 page 6 Paragraph 10-12 for Chief Surgeon Army National Guard and United States Army Reserve Command Surgeon the applicant should have been briefed and provide detailed counseling regarding his medical situation and the completion of the DA Form 199 or any other relevant documents associated with his discharge. (1) While it appears the process was conducted in accordance with prescribed regulation and process there was obviously a human error that occurred that had devastating financial repercussions for the applicant and his family. He was guided through the process of completing the DA Form 199 by his unit Readiness NCO. The Readiness NCO did not have access to the Memorandum dated 26 July 2018 nor had he been briefed on it. Additionally, it appears (due to no fault of his own) the Readiness NCO had not been formally trained/advised in how to understand the consequences of Soldier selections in Section IX of the DA Form 199. This resulted in inadequate counsel to the applicant resulting in the inadvertent selection he made in Section IX of the DA Form 199. (2) Because the applicant was a Federal Technician, the selection he made impacted his FERS Disability Retirement by over $2,000 per month for his first year of retirement through age 62 and over $1,000 after age 62. This is a significant impact on him and his family. The applicant was filing an appeal. The congressman was in support of his efforts and respectfully requesting a full review. It's his hope, based on a review and the fact that the applicant or his Readiness NCO were not briefed or trained in the enormous consequences of the decisions they made the applicant would get the opportunity to readdress his issue and exit service with the PERS Disability Retirement he should have. h. A Sworn Statement from Staff Sergeant/E6 CJ__, dated 26 April 2021, states that on 8 April 2021, he witnessed the applicant ask SFC CJ__ (Readiness NCO) on speaker phone who counseled SFC CJ__ on how to counsel him (the applicant) on his PEB process. To which SFC CJ__ replied, " nobody". i. A Memorandum, Subject: Applicant PEB, dated 29 June 2021, shows SFC CJ__, RNCO states section IX of the DA Form 199, asks if the Soldier has been advised of the finding and recommendations of the informal PEB and has received an explanation of the findings. He and the applicant was shown the memorandum of the PEB findings. They reviewed it. The marked concur with the findings of the PEB. They were not aware that by marking concur, it would have an effect on his technician pay. No one from the technician program or National Guard explained that to them. They were thinking that since the applicant chose Option D on his over 20 year counseling then he would be taking care of the Federal Technician side. j. The applicant sought congressional assistance. 3. A review of the applicant’s service record shows: a. With prior service, he enlisted in the MSARNG on 21 July 1990. b. On 3 August 2005, his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) notified him that having completed the required years of service, he would be eligible for retired pay upon application at age 60. c. On 15 June 2020, an informal PEB (DA Form 199) convened and found him physically unfit and that his disposition be referred for case disposition under Reserve Component regulations. His medical condition was low back pain. The case was adjudicated as a non-duty related case. Section IX (Soldier’s Election)-states “I have been advised of the findings and recommendations of the Informal Physical Evaluation Board and have received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto. I understand that if I fail to make an election within the time prescribed after the PEBLO or applicable counselor has informed me of the findings, the PEB may proceed as if I have concurred with the findings and recommendations.” The applicant marked “I concur and waive a formal hearing of my case.” The applicant signed the form on 9 September 2020. d. He was honorably discharged from the MSARNG on 16 December 2020 and transferred to USAR (Retired Reserve). He completed 30 years, 4 months, and 26 days of service. 4. An advisory opinion in the processing of this case from the National Guard Bureau, dated 19 April 2022, states: a. Summary: The applicant requests that his State orders placing him in the Retired Reserve be changed. He additionally requests to have his DA 199 election changed and to have his discharge from the National Guard be considered as medical reasons. b. Recommendation: Returned Without Action. c. Discussion: The MSARNG submitted a medical packet for the applicant to the Army Physical Evaluation Board (PEB) for a non-duty fitness determination. The PEB determined that he was unfit for military service due to the fact there was no evidence to support any connection to his current lower back issues and that of his injury in 1998 since the Soldier still remained in the National Guard for an additional 22 years. The applicant concurred with the PEB findings on 9 September 2020 and was discharged by the MSARNG on 17 December 2020. He had served over 20 years of military service, and therefore met the criteria for a grey area retirement and was placed on the retired reserve list. His request to have his grey area retirement from the National Guard changed to medical retirement would affect him financially and would not be within the guidance of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-27. d. It is the recommendation of this office to return his claim without action. His request to have his discharge be considered as medical in order to get a medical disability from his technician job does not fall within the purview of the Army National Guard. The MSARNG, however, has stated they are willing to assist the Soldier with civilian retirement and that he should contact them to address his issue. His request to have dates in the DA Form 199 changed, and also to change the decision of the PEB, does not fall within the purview of the Army National Guard. 5. 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, the Army Aeromedical Resource Office (AERO), and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant was placed on a duty limiting permanent physical profile for “Lower Back Injury/Pain” on 9 February 2019. The MSARNG notified the applicant in a 27 September 2019 memorandum that his non-duty related “Lower Back Injury/Pain” was disqualifying for continued military service. The applicant was counseled on this and the process going forward on 20 November 2019. He elected to have his case submitted to a non-duty related physical evaluation board (NDR PEB). b. Reserve Component (RC) Service members who are not on a call to active duty of more than 30 days and who are pending separation for non-duty related medical conditions may enter the Disability Evaluation System (DES) for a determination of fitness. A NDR PEB affords these Soldiers the opportunity to have fitness determined under the standards that apply to Soldiers who have the statutory right to be referred to the DES for a duty related medical condition. After 2014, these boards would also look to see if the referred conditions were duty related, and if so, return them to the sending organization for entrance into the duty related processes of the DES. c. On 15 June 2020, his informal NDR PEB determined that his “Lower back pain” was an unfitting non-duty related medical condition for further service: (1) “SFC “{Applicant} initially injured his back in the 1990's while at work. The Soldier has an LOD {line of duty} dated 21 June 1998, of which he reinjured his back. The Soldier’s medical document dated 5 November 2011, states "presents today with permanent profile for prior back surgery, removal of disc. Bent over to pick up a pair of boots and fell to knees in 1992. Thinks he injured back while-at work. (2) Had MRI done-showed L3-L4 disc bulging. Had surgery to remove disc in 1992. Has a permanent profile with limitations of no running or sit-ups. He is able to perform AFPT has to walk instead of run. Has been deployed after surgery and had no problems. Does have stiffness and pain occasionally which he uses Tylenol or Icy hot to relieve pain. Denies numbness and tingling in extremities. (3) This condition is not compensable because the PEB's review of available military and civilian medical records did not reveal any evidence that the condition was either incurred or aggravated while on active duty.” d. After being counseled on the PEB’s findings, the applicant concurred with the board’s findings and recommendation and waived his right to a formal hearing. e. Review of records in AHLTA, MEDCHART, and MODS found no evidence his lumbar condition was duty related. f. Submitted documentation appears to show the applicant was granted a disability retirement from the Federal Employment Retirement System for his 14+ years of work as a military technician. g. Military technicians are federal civilian employees who are required to maintain a military membership with a Guard unit as part of their employment (dual status). The treatment of and possible compensation for work related injuries incurred by these civilian employees are addressed by the Workers Compensation Program and not the Army National Guard. As such, injuries incurred while in a technician status are not eligible for the DES: They were incurred while the individual was a federal civilian employee and not in a military duty status. h. It is the opinion of the ARBA Medical Advisor that a referral of his case to the DES is unwarranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the advisory officials that the evidence does not support making any changes to the applicant’s records as they relate to his discharge due to a non-duty related disability. The Board determined the documentation related to the applicant’s discharge from the MSARNG and transfer to the Retired Reserve does not contain any substantive errors and should not be changed. 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. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. a. Service members who are determined to be unfit for duty due to disability are either 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. b. The mere presence of 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 2. Title 38, USC 1110 (General-Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 3. Title 38, USC 1131 (Peacetime Disability Compensation - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010635 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1