IN THE CASE OF: BOARD DATE: 25 April 2023 DOCKET NUMBER: AR20210016760 APPLICANT REQUESTS: •direct the Alabama Army National Guard (ARNG) complete an LOD (line of duty) investigation for 09/21/2008 illness incurred during scheduled drill•initiate a medical evaluation board (MEB) to review all medical records, and if appropriate, refer the MEB decision to a physical evaluation board (PEB)•if a determination of fitness cannot be made by the MEB/PEB based on the medical records, generate invitational travel orders to schedule an Office of the Surgeon General evaluation.•if a determination is made that separation should have occurred through the PDES, the proceedings by the ABCMR are authority to:•Rate all military related injuries and illness for appropriate compensation and applicability•Pay all back pay and allowances less any entitlements already received•Issue the appropriate disability discharge•Pay all back pay and allowances less any entitlements already received•Void the administrative (Honorable) discharge APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) with continuation. •Birth Certificate •Copies of requests for military and private medical records •Copies of iPERMS and U.S. Army Human Resources Command records •DA Form 2823 for injury incurred on 21 SEP 2008 •21 September 2008 Leave and Earnings Statement •March 2002 and April 2003 LODs (Line of Duty) •Emails between self and unit concerning 21 September 2008 injury •Documentation (fax) between health care provider, self, and unit •Copies of documentation for ADSW (Active Duty for Special Work) and ADOS(Active Duty for Operational Support) •Release from active duty orders • DD Form 214 (Certificate of Release or Discharge from Active Duty) • DD Form 2648-1 Separation Counseling Worksheet • Spouse statement(s) • Multiple Requests for the Use and Disclosure of protected Health Information • Documentation of cancer and foot medical procedures • Correspondence between family physician and unit • 31 March 2012 MEDPROS update. • Medical Readiness Leaders Crib sheet • Extract of Army Regulation (AR) 40-501 (Standards of Medical Fitness) • Extract of AR 623-205 (NCO Evaluation Reporting System) • Physical Profile(s) • Service Treatment Records • Noncommissioned Officer Evaluation Reports • Award certificates, orders, and related documents FACTS: 1. The applicant did not file within the 3-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 his leadership and chain of command did not respond to military or private physician documentation applicable to application of AR 40-501 to determine his Standard of Medical Fitness for continued military service. Additionally, DOD Policies, Army Regulation, Army National Guard (ARNG) Policies, letters of instructions (LOIs) and Guidance were not properly applied to determine physical fitness at any period referenced in this petition. He was unable to successfully complete the final period of his service obligation and was honorably discharged without a pension versus a disability discharge with benefits. He puts forth the aforementioned with the highest level of respect for his leadership, chain of command and United State Military. a. While on ADSW (active duty for special work) orders dated 24 March 2008 to 31 July 2008, he applied for and released by the state of Alabama to support an ADOS assignment scheduled to begin on 10/15/2008. As required, he completed a physical on 07/07/2008 and was found acceptable for the assignment. During scheduled drill on 21 September 2008, he experienced on onset of pain, went to an intermediate critical care facility, transported via ambulance to a local hospital and underwent emergency surgery with a 7-day inpatient stay. While convalescing at home, he was completing paperwork for INCAP (incapacitation) pay and the MEB process. During convalescence at home, he received orders A-10-820038 dated 07 October 2008 to report 15 October 2008 for the AODS assignment. b. Concerned, he traveled to his unit in Huntsville, AL to inquire about his physical condition and call to Active Duty. He was directed by the sergeant major (SGM) to report even though he was entering the MEB process, had an active colostomy and was being processed for an MEB. Per his SGM, he reported for the AODS and immediately notified his gaining Chain of Command of his physical condition(s) with a 10-pound lifting restriction. They agreed that he would not have to perform PT (physical training) participate in Airborne Operations and observe the 10-pound lifting restriction; he was subsequently tasked to fulfill mostly administrative duties as the battalion Property Book NCO. c. All physical limitations were respected but there were a few instances where the safety of Army Property and Personnel required immediate action where he was unable to observe the 10-pound lifting restriction. On 17 September 2009, he was requested to remain TDY (temporary duty) on the ADOS. He made formal request thru his Home Station unit Chain of Command-with the 20th Special Forces Group on 08/27/2009 and the State of Alabama approved to TDY to remain in place. On 09 April 2009, he received Orders A-04-910695 for discharge from active duty. Prior to his discharge, he received surgery at Bach Army Hospital, Fort Campbell, KY. to reattach his colon (takedown). d. During release from the hospital and ADOS clearance process, he was not afforded an opportunity to receive a physical. In addition, he did not receive a briefing for VA Benefits during release from active duty. Either may have triggered an MEB. e. Upon return to his unit, he began to physically decline as the result of previous LOD's and non-service­ connected cancer. One OEF LOD led to an operation for Hallux Rigidus, inserting a metal plate and screw. 2005 for cancer treatment consisted of an operation to his neck to remove all left neck lymph nodes. This surgery resulted in permeant placement of metal staples in his neck and severance of a major nerve in his left shoulder. As a result, he was unable to complete an AFPT as reflected in accompanying NCO Evaluation Reports (NCOER). f. His NCOER scores were exceptional in all categories until he received his cancer surgery at which time his inability to take an APFT reduced his score. Against better judgement, his chain of command allowed him to return to jump status which ultimately aggravated his neck and shoulder injuries. From that point forward, he was unable to take an APFT due to existing and new medical conditions. He was issued profiles for various illness/injuries with a profile recommendation to complete an LOO and schedule an MEB. Temporary profiles were exceeded the 12-month threshold becoming permeant U and L #3 scores which should have at least triggered an MOS review albeit an MEB. g.At the request of his chain of command, his civilian Primary Care Physician(PCP) filled out several Functional Activities for Soldier Consult Forms. The final document reflected that in his opinion he was permanently disabled. Both his PCP and his practicing colleague wrote letters to the military expressing concern for his continued health and ability to successfully continue to serve in the military. As his health deteriorated, he updated his PHA (Periodic Health Assessment) and wrote to his Chain of Command requesting review of his updated PHA and request for a review of his fitness for continued service. h.While in good health, he was able to attend drill and annual training regularlywhile also volunteering for additional assignments. Approximately in 2012, his unit relocated to Fort Payne, AL which added and additional .5-hour drive to attend drill. His civilian duty assignment was in the Fort Meade, MD area and his Home of Record (HOR) was in Western Tennessee. To attend drill, he had to fly from a Baltimore, MD area airport to Nashville, TN, drive approximately 2 hours to his HOR to pick up his military gear and drive approximately 4 hours to Huntsville, AL. He also asked for relief with another assignment since there was a change in location for his unit, which went unassisted. 3.Review of the applicant’s service records shows: a.He was born on XX J___ 1956 and turned 60 on XX J__ 2016. He served on active duty (Regular Army) from 30 March 1974 to 4 April 1980, holding military occupational specialty (MOS) 12B (Combat Engineer). b. He also served in the Tennessee Army National Guard (TNARNG) from 17 May 1993 to 20 June 1996, also holding MOS 12B. c. He enlisted in the ARNG on 2 September 1998. He served through multiple extensions, in a variety of assignments, including service on active duty from 5 August 2002 to 30 July 2003, with service in Afghanistan from 8 September 2002 to 19 February 2003. d. He reentered active duty on 15 October 2008 in support of Operational Support, holding MOS 25C, Radio Operator/Maintainer. He was honorably released from active duty on 30 October 2009. e. He continued to drill with his unit, Support Company, 1st Battalion 20th Special Forces Group, Fort Payne, AL. He extended his AERNG enlistment by 1 year on 22 July 2012, establishing his expiration of term of service (ETS) date as 18 June 2014. f. On 3 April 2013, Joint Forces Headquarters, ARNG published Orders 093-523discharging him from the ARNG effective 28 March 2013, by authority of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-35j, (Unsatisfactory Participation). He was reassigned to the U.S. Army Reserve Control Group (Reinforcement). g.His NGB Form 22 (Report of Separation and Record of Service) shows he washonorably discharged from the ARNG on 28 March 2013 in accordance with paragraph 6-35j (Unsatisfactory Participation) of NGR 600-200. It also shows he completed 14years, 6 months, and 27 days of ARNG this period and he had 12 years, 4 months, and29 days of prior Reserve Component service. h.Order Number D-06-413060, dated 24 June 2014, issued by U.S. Army HumanResources Command honorably discharged the applicant from the U.S. Army Reserve under provisions of AR 135-178 (Separation of Enlisted Personnel) on 24 June 2014. i.His DA Form 5016 (Chronological Statement of Retirement Points) shows hecompleted 17 years, 1 month, and 15 days of qualifying service towards non-regular retirement. A breakdown of his most recent 5 years shows: •20100601-20110531, 11 IDT points, 15 membership points, 27 total points •20110601-20120531, 3 IDT points, 15 membership points, 18 total points •20120601-20130531, 12 IDT points, 15 membership points, 27 total points •20130601-20140531, 15 membership points, 15 total points •20140601-20140624, 1 membership point 4.The National Guard Bureau (NGB) provided an advisory opinion in the processing of this case on 18 January 2023, recommending disapproval. the NGB advisory official stated:a.Applicant is requesting the ARNG complete a Line of Duty (LOD) investigation for 21 September 2008 illness incurred during drill; a Medical Evaluation Board (MEB) review of all medical records and if appropriate refer MEB decision to a Physical Evaluation Board (PEB); to ultimately determine if a disability discharge was warranted and receive back pay. b. The NGB found no evidence of duty/combat related injury justifying a disability discharge. The applicant received surgery in 2009, for his 2008 illness referenced in application. Thereafter, his health did not hinder continued service through discharge date in 2012 as evident in available performance evaluations and military medical records. c. This opinion was coordinated with Army National Guard Clinical Operations Branch. No input received from the ARNG. 5.The applicant was provided with a copy of this advisory opinion. He did not respond. 6.MEDICAL REVIEW: a.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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting a line of duty investigation be completed by the Alabama Army National Guard; and his records be reviewed for eligibility for a referral to the Disability Evaluation System (DES). He states: “My Leadership and Chain of Command did not respond to Military or Private physician documentation applicable to application of AR 40-501 to determine my Standard of Medical Fitness for continued Military Service. Additionally, DOD Policies, AR's, ARNG Policies, LOI's and Guidance were not properly applied to determine physical fitness at any period referenced in this petition. I was unable to successfully complete the final period of my service obligation and was Honorably Discharged without a pension vs. a Disability Discharge with Benefits.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The National Guard Report of Separation and Record of Service (NBG Form 22) for the period of service under consideration shows he enlisted in the Army National Guard on 2 September 1998 and was honorably discharged from the Alabama Army National Guard (ARNG) on 28 March 2013 under the separation authority provided by paragraph 6-35j of NGR 635-200, Enlisted Personnel Management (31 July 2009): Unsatisfactory Participation. It shows he has 15 years, 7 months, and 16 days of total service for retired pay. d.From the applicant’s self-authored statement: While on ADSW {Active Duty for Work Support} orders dated 24 March 2008 to31 July 2008, I applied for and released by the state of Alabama to support an ADOS {active duty for operational support} assignment scheduled to begin on 10/15/2008. As required, I completed a physical on 07/07/2008 and was found acceptable for the assignment. During scheduled drill on 21 September 2008, I experienced on onset of pain, went to an intermediate critical care facility, transported via ambulance to a local hospital and underwent emergency surgery with a 7-day inpatient stay. While convalescing at home, I was completing paperwork for INCAP pay and the MEB process.” e. Orders published by the ARNG on 9 July 2008 show that his period of Temporary duty, initially from 24 March thru 30 September 2008, was curtailed to 31 July 2008. f. An operative report shows the applicant underwent open resection of the sigmoidcolon with placement of a colostomy for a perforated diverticulum on 21 September 2008 (a Sunday). The operative note stated: “There is purulent fluid present in the pelvis and in the right lower quadrant and left lower quadrant of the abdomen and also in the right subhepatic area. Exudates present in the pelvis arid the adjoining loops of small bowel. There is evidence of a small perforation present in the mid-sigmoid colon.” g. This large amount of fluid is consistent with a subacute process which would have been present for days if not weeks prior to his drill weekend. h. Orders published by the United States Army Human Resourced Command on 7 October 2008 show he was to start a 179-day ADOS tour on 15 October 2008. A DD 214 shows he served on these orders from 15 October 2008 thru 30 October 2009 and was released at the completion of his required active service under provisions in chapter 4 of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005). It is unclear how the applicant entered active duty with a colostomy as this did not meet mobilization standards. i. During this period of active duty, the applicant underwent colonic re-anastomosis and colostomy closure at Blanchfield Army Community Hospital (Ft. Campbell, KY) on 15 September 2009. At is surgical follow-up appointment on 19 October 2009, he had no complaints, a normal examination, and was released without limitations. Only complications from this surgery, performed while the applicant was on active duty, would have been eligible for DES processing. There is no evidence of complications. As it was, the applicant was fortunate to have somehow been on orders at the time of his surgery which authorized the applicant free military health care. j. It is highly unlikely the applicant’s ruptured diverticulum was caused by his militaryservice during the 20-21 September 2008 drill weekend, and a formal investigation would be required to evaluate the possibility this condition was caused by his service that weekend. Paragraph 2-3c(8) of AR 600-8-4, Line of Duty Policy, Procedures, and Investigations (15 April 2004) states a formal line of duty investigation is required “When a USAR or ARNG soldier serving on an AD tour of 30 days or less is disabled due to disease.” There is no evidence the required formal line of duty was initiated or completed. k.A 17 August 2010 note from his primary care provider effectively states theapplicant is no longer fit for military service due to several medical conditions: ln 2005 he developed carcinoma of the tongue requiring modified neck lymph node dissection and excision of the posterior 1/3 of the tongue with a temporary tracheostomy. He later received radiation to the throat with a permanent dry throat requiring water nearly every 15 minutes and pain medicine on a recurring basis. In 2008 he developed arthritis of his left knee that gives him trouble at times when he does severe exercises like the activity necessary for combat. Also in 2008, he had a spontaneous perforation of the colon requiring a colostomy that eventually had to be closed. The colostomy herniated and had to be repaired. Abnormal gas pain and bowel movements resulted from the surgery. When he does heavy lifting using his abdominal muscles, it causes sudden abdominal cramps and diarrhea and pain in the surgical site ... For these reasons, {Applicant} should be prevented from participation in any type of combat duty.” l.The applicant underwent fusion of his arthritic left great toe metatarsophalangealjoint and excision of a soft tissue mass from the left foot at Southern Tennessee Medical Center on 25 January 2013. m.The applicant was on a series of duty limiting temporary profiles for his post-operative abdominal condition from April 2012 through May 2013. However, he was never placed on a duty limiting permanent profile, the first step and that which initiates DES processing. n.Review of his Army National Guard Retirement Points History Statement (NGB23B) shows the applicant only acquired 26 Inactive Duty for Training (IDT) points from 1 June 2010 through his discharge on 28 March 2013 which equates to just 13 days of drill or drill equivalent over this 33-month period. o.There is no probative evidence the applicant’s intestinal surgery or other medicalcondition was a cause for referral to the DES prior to his discharge for unsatisfactory participation; or that any condition prevented the applicant from attending drill and/or maintaining contact with his leadership. p.It is the opinion of the ARBA medical advisor that his diverticular disease andcolonic rupture were not incurred in the line of duty and that a referral of his case to the DES is not indicated. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence of record shows the applicant was honorably discharged from the ARNG on 28 March 2013 in accordance with paragraph 6-35j (Unsatisfactory Participation) of NGR 600-200. The NGB found no evidence of duty/combat related injury justifying a disability discharge. Although he had a series of duty limiting temporary profiles for his post-operative abdominal condition from April 2012 through May 2013, he was never placed on a duty limiting permanent profile, which is the first step and that which initiates disability evaluation system. The Board reviewed and agreed with the advisory official’s finding no probative evidence the applicant’s intestinal surgery or other medical condition was a cause for referral to the disability evaluation system prior to his discharge for unsatisfactory participation; or that any condition prevented the applicant from attending drill and/or maintaining contact with his leadership. Based on the preponderance of the evidence, the Board determined a referral to the disability evaluation system is not warranted. 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. Microsoft Office Signature Line... REFERENCES: 1.Title 10, U.S. Code, section 1552(b), provides that applications for correction ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice. This provision of law also allows the ABCMR to excuse an applicant's failure totimely file within the 3-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so. 2.Army Regulation 135-178 (Separation of Enlisted Personnel), prescribes the policies,criteria and procedures which apply to separation of enlisted members of the ArmyNational Guard (ARNG) and the United States Army Reserve (USAR). 3.National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management)establishes standards, policies, and procedures for the management of the ArmyNational Guard (ARNG) and the Army National Guard of the United States enlistedSoldiers. Paragraph 6-35 pertains to Separation/Discharge from State ARNG and/orReserve of the Army. Sub-Paragraph 6-35j states, Refer to AR 135-178, chapter 12, forunsatisfactory participation. Commanders may recommend retention of Soldiers whohave accrued 9 or more unexcused absences within a 1-year period. Submit requestswith justification for retention to the State G1. Include verification that the notificationrequirements of AR 135-91 and paragraph 6-32 have been met. 4.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations. Clemency generally refers to relief specifically granted from a criminalsentence. BCM/NRs may grant clemency regardless of the type of court-martial.However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which maybe warranted based on equity or relief from injustice. This guidance does not mandaterelief, but rather provides standards and principles to guide Boards in application of theirequitable relief authority. In determining whether to grant relief based on equity,injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation,external evidence, sworn testimony, policy changes, relative severity of misconduct,mental and behavioral health conditions, official governmental acknowledgement that arelevant error or injustice was committed, and uniformity of punishment. Changes to thenarrative reason for discharge and/or an upgraded character of service granted solelyon equity, injustice, or clemency grounds normally should not result in separation pay,retroactive promotions, and payment of past medical expenses or similar benefits thatmight have been received if the original discharge had been for the revised reason orhad the upgraded service characterization. //NOTHING FOLLOWS//