IN THE CASE OF: BOARD DATE: 25 May 2022 DOCKET NUMBER: AR20210010880 APPLICANT REQUESTS: Correction of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) to show he was separated by reason of physical disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review 0f Discharge) in lieu of DD Form 149 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 4 April 1986 * Standard Form 513 (Medical Record Consultation Sheet), dated 8 June 1987 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 8 June 1987 * Letter of Commendation, dated 1 December 1987 * NGB Form 22, for the period ending 1 July 1990 * Congressional Representative letters, dated 14 June 2021 and 1 July 2021 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he had a minor knee injury in 1987 that turned into a major setback during training. However, he did continue his service until 1990 when his knee issues continued to elevate in pain and decrease his performance. He is trying to get a Department of Veterans Affairs home loan and would have completed his six years if not for this injury. He is now 55 years old and has had two complete knee replacements. 3. The applicant enlisted in the Louisiana Army National Guard (LAARNG) on 20 August 1985, for a period of 8 years. He entered active duty on 6 January 1986, for the purpose of completing his initial active duty for training. Upon completion of training, he was awarded military occupational specialty 11M (Heavy Anti-Armor Weapons Crewman) and was released from active duty on 4 April 1986 to the control of the LAARNG. The DD Form 214 he was issued confirms his service was characterized as honorable. 4. On 1 December 1987, the applicant received a letter of commendation for his service during annual training from 31 May 1987 to 12 June 1987. He was lauded for his professionalism, dedication to duty, and expertise. 5. Orders Number 113-021, issued by the LAARNG on 7 June 1990, honorably discharged the applicant from the ARNG, effective 1 July 1990. 6. The applicant’s NGB Form 22 shows he was discharged on 1 July 1990. He was discharged under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management System), paragraph 8-26y, for being medically unfit for retention. His service was characterized as honorable. 7. The applicant provides a DA Form 2173, dated 8 June 1987, which shows he injured the ligaments in his knee and had instability in his right knee. He originally injured his knee two months prior to advanced individual training. 8. The authority granted by Title 10, USC, Section 1552 (Correction of Military or Naval Records) is not unlimited. The ABCMR has the authority to correct only Army records. The Board has no authority to correct records created by the Department of Defense, other branches of the Services, Department of Veterans Affairs, or any other governmental agency. ARNG discharges, as documented on NGB Form 22, are functions of the State under the legal authority of Title 32 and are not Federal actions. As such, they are primarily under the control of the State Adjutant General. The ABCMR may only recommend possible actions. 9. 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 is applying to the ABCMR requesting, in essence, a referral to the Disability Evaluation System (DES). He states: “I had a minor knee issue prior to AT {annual training} 1987 and I did further damage on my track vehicle. I had surgery and remained with my company until the injury no longer allowed me to meet the required level of fitness ... Please review my AT 87 medical exam. I had earlier twisted my knee with minor discomfort and completely damaged ligaments dismounting my track vehicle ... I had knee surgery by my civilian doctor following AT 87.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s Report of Separation and Record of Service (NGB Form 22) for the period of Service under consideration shows the former drilling Guardsman enlisted in the Army National Guard on 20 August 1985 and was discharged from the Louisiana Army National Guard (LAARNG) on 1 July 1990 under the provisions of paragraph 8-26y of NGR 600-200, Enlisted Personnel Management (1 February 1990): Medically unfit for retention standards of chapter 3, per AR 40-501 (Standards of Medical Fitness). c. Paragraph 8-26y of NGR 600-200: “If a commander suspects a soldier may not be medically qualified for retention, he or she will direct a soldier to present him or herself for a medical exam IAW NGR 40-501. If the soldier refuses to report for a physical exam as directed, see para 8-27j of this regulation. A complete medical exam will be accomplished and the results forwarded to the unit commander for disposition. If retention is not recommended a request for discharge will be submitted to the State AG. When medical condition was incurred in line of duty, the procedures of NGR 40-3 will apply. Discharge action will not be effected pending final disposition of the case. RE (Reentry code) 3.” d. The applicant was evaluated by orthopedics on 8 June 1987: “21-year-old male originally hurt knee 2 months ago while not on active duty, doing well until one week ago when {illegible} knee jumping off a tract vehicle. Physical exam: No effusion or swelling, + Lachman, grade II anterior drawer Assessment: MRI with torn medial meniscus, chronic, not service connected, recommend follow-up with orthopedic surgeon on completion of AT.” e. The physical examination is consistent with an old anterior cruciate ligament (ACL) tear, as an ACL injury just one week prior to the examination would have been positive for an effusion and swelling: Rupture of the ACL also tears the vasculature within the ligament and the knee quickly fills with blood. f. Documents addressing the applicant’s discharge were not submitted with the application and would predate iPERMS. g. JLV shows the applicant is not registered with the VA. h. It is the opinion of the Agency 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 that relief was 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 the medical advisory the Board concurred with the medical advisory finding referral to the Disability Evaluation System is not warranted. 2. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. Based on this, the Board denied relief. 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. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement.) Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 3. National Guard Regulation 600-200 (Enlisted Personnel Management System) provides for management of enlisted personnel. Chapter 8 of this regulation sets the policies, standards, and procedures for the separation of enlisted Soldiers from the ARNG. It states, in pertinent part, that the separation of a Soldier from the ARNG is a function of State military authorities in accordance with State laws and regulations. Paragraph 8-26y provides for separation based on unfitness for retention. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010880 1 AMRY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1