IN THE CASE OF: BOARD DATE: 15 December 2022 DOCKET NUMBER: AR20220005793 APPLICANT REQUESTS: correction of her medical discharge with any compensation due. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 9 February 2022 * Self-Addressed Statement, undated * DD Form 214 (Certificate of Release or Discharge from Active Duty), 17 April 1980 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), 21 April 1993 * Certificate of Professional Care, , 11 October 1993 * Clarksville Memorial Hospital note, 20 September 1993 * Statement of, 24 March 1995 * Headquarters, Tennessee Army National Guard, Subject: Inspector General (IG) Action Request, 21 October 1996 * 269th Military Police Company, Memorandum, Subject: Results of State Medical Review Board (SMRB), 22 November 1996 * NGB Form 22, 1 April 1997 * Joint Force Headquarters, Tennessee National Guard, Memorandum, Subject: IG Action Request, 22 April 2019 * Email Correspondence, Subject: Your Issue, 22 April 2019 * Foot Conditions, Including Flatfoot (Pes Planus), Disability Benefits Questionnaire, 1 February 2021 * Medical Opinion, Disability Benefits Questionnaire, 1 February 2021 * Email Correspondence, Subject: Latest Update in your case, 2 September 2021 * Email Correspondence, Subject: Fraley and Freedom of Information Act (FOIA), 22 October 2021 * Self-Authored Statement, 7 December 2021 * Email Correspondence, Subject: FOIA Request, 17 December 2021 * Email Correspondence, Subject: FOIA Request for IG Records, 21 December 2021 * Email Correspondence, Subject: FOIA Acknowledgement 22-117, 27 December 2021 * Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA) Decision, 10 January 2022 * VA letter, 24 January 2022 * Certificate of Professional Care, , 24 April (year illegible) FACTS: 1. The applicant did not file within the 3-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: a. She was wrongfully discharged from the military due to reprisal from Lieutenant Colonel (LTC) related to an IG Action Report complaint she filed against him. She received a letter from her commander stating that a Medical Evaluation Board (MEB) was conducted; however, no MEB, NGB Orders Number 22, NGB Orders Number 55, or discharge orders were enclosed. When she received her NGB Form 22, it stated her records were mailed to her; but the address was illegible, the street name was one she never lived on, and the house number was not visible. The discharge date was 1 April 1997, but the commander's letter was dated 22 November 1996 and that address was correct. b. She submitted VA claims on the following dates: * 12 December 2009 Her original VA claim was submitted and a failure in duty to assist was identified by a higher-level review; but they did not collect all records * 14 December 2010 A decision letter was sent * 8 December 2011 An appeal sent to the VA * 27 January 2014 A statement of case was sent to the wrong address * 29 January 2019 Submission of another VA claim * 24 March 2020 Denial of claim and she hired an attorney, * March 2020 Her attorney submitted a higher-level review to VA. * 18 August 2020 Received 10 percent disability for tinnitus with all other conditions deferred for a failure in duty to assist again and a supplemental inquiry was submitted to collect all records * 2 August 2021 She had not received all records and she called the VA and was informed they were unable to retrieve records from the Joint Services Record Research Center and National Personnel Records Center * 2 August 2021 She called at Congressman 's office for assistance * 2 December 2021 was able to upload all records into the VA system * Her attorney submitted another request for a higher-level review c. Chronological Order of Events: (1) Active Duty U.S. Air Force (USAF) from 8 January 1979 to 17 April 1980. During basic training, she was given men's size 6 regular boots which were too narrow and too long causing blisters on her heels. When she complained, she was informed to get used to them. She was treated by Podiatrist, and was diagnosed with a Morton's Neuroma which can be caused by narrow footwear. After basic training and technical school, she was assigned to her duty station and ordered men's size 4 extra wide boots. The Podiatrist stated that the prolonged compression further damaged her feet. (2) Tennessee Air National Guard from 12 September 1993 to 21 April 1993. She was able to wear her men's size 4 extra wide steel-toe boots. (3) Tennessee Army National Guard from 22 April 1993 to 1 April 1997. She was not able to wear her men's size 4 extra wide steel-toe boots. She was informed that she was no longer in the USAF and issued men's size 6 regular boots. Her foot problems flared up again and she was unable to attend Guard meeting at times. When she was able to attend, she had to visit the Podiatrist afterwards for cortisone shots. Her Podiatrist stated surgery would be required if she continued to wear these boots and he provided numerous letters to her command. During a 2-week activation period, she was sent home by the medics due to her Morton's Neuroma and was informed to not attend Guard meetings until her foot condition was resolved. LTC came to the command and ordered her back to active duty. He yelled at her in front of the entire unit, called her a malingerer and stated that women did not belong in the military. She was harassed by LTC at Guard meetings leaving her embarrassed, ashamed, humiliated, and belittled. She contacted the IG and received a response stating that although LTC s remarks were apparently offensive, demeaning, and threatening, they were not outside any legal or regulatory boundary. She received a letter from her commander, dated 22 November 1996, informing her that she was deemed medically unfit for retention in accordance with her MEB. She did not receive a copy of the MEB, Orders Number 84-161, NGB Form 55 (National Guard - Certificate of Honorable Discharge) or NGB Form 22. (4) On 27 October 2000, she spoke to someone at the Tennessee War Records office and requested a copy of her NGB Form 22 from the Army National Guard. However, she received an illegible copy of her NGB Form 22 from the Air Guard with the incorrect name. She called back to request a corrected NGB Form 22, NGB Form 55 and a copy of her MEB. (5) In April 2021, she received the NGB Form 22, but never received the MEB, discharge orders or NGB Form 55. Her NGB Form 22 states her records were mailed to Address X (), but the house number was not present. She never lived at Address X. She previously lived at Address Y (). The commander's letter dated 22 November 1996 was sent to the correct address. (6) On 12 October 2003 and 9 September 2005, she contacted the VA for assistance in receiving her records, but each time, she was informed that no records were available. On 12 December 2009, she submitted a claim for VA Compensation and Pension, but the only available records were from the VA Pensacola office and her claim was denied. On 29 January 2019, she submitted another VA Compensation and Pension claim but was again denied. On 30 January 2019, she submitted an IG Action Request through the White House complaint line and was informed that the Office of the IG conducted a thorough inquiry and determined the Tennessee National Guard Medical Command was unable to find any documentation regarding her MEB from 1996. On 20 August 2020, a duty to assist error was found from her original claim in 2009 and in 2019. On 28 June 2021, she received a letter granting bilateral hearing loss at 0 percent, and all the other issues were deferred again for records. A supplemental claim was then pursued by the VA to get all the records. (7) On 2 August 2021 she contacted at Congressman 's office for assistance with retrieving her records from the Joint Services Record Research Center and National Personnel Records Center. She received all records except her original IG Action Request which were uploaded into the VA system on 2 December 2021. In October 2021, her son contacted the Governor's office due to frustration with how the Tennessee National Guard's office was handling her case. Master Sergeant (MSG) responded to her compliant and she requested the original IG Action Request complaint. She was informed that she would need to file a FOIA request to receive the documentation. On 12 December 2021, she received an email from MSG stating that her FOIA request had been forwarded to the Army IG Records Release office for action. On 2 December 2021, her attorney requested a higher-level review and on 10 January 2022, she received a decision letter that overturned the previous favorable findings. It was determined that the records from 22 November 1996 showed she was medically unfit for duty due to the Morton's Neuroma. The evidence did not show that her condition developed or had its onset during a period of active service to include a period of inactive duty for training or active duty for training. However, she contends that since she was discharged for Morton's Neuroma; this shows a service connection. In addition, a VA examination on 1 February 2021 documented a level of impairment to a degree of 10 percent or more and determined that her condition manifested to a degree of 10 percent or more following service. 3. The applicant's service record shows: a. DA Form 2-1 (Personnel Qualification Record) shows in Section VIII (Current and Previous Assignments): * U.S. Air Force-Active Duty from 8 January 1979 to 17 April 1980 * U.S. Air Force-Reserve from 12 September 1992 to 21 April 1993 * Enlistment on 22 April 1993 * Honorable Discharge on 1 April 1997 b. DD Form 214, ending on 17 April 1980, shows the applicant was honorably released from active duty in the USAF by hardship reasons. She completed 1 year, 3 months, and 10 days of net active service. c. Special Orders P-461 issued by Headquarters, 118th Airlift Wing, Tennessee Air National Guard, dated 13 September 1992, shows the applicant enlisted in the Tennessee Air National Guard for 6 years, effective 12 September 1992. She was listed as Name X in the rank of Airman First Class (A1C). d. Headquarters, Tennessee Air National Guard letter, dated 21 April 1993, granted the applicant conditional release from the Tennessee Air National Guard until 16 June 1993 for enlistment into the Tennessee Army National Guard (TNARNG). e. On 22 April 1993, the applicant enlisted in the Army National Guard of the United States. DD Form 4, (Enlistment/Reenlistment Document Armed Forces of the United States) shows the applicant enlisted for 5 years and 18 weeks. f. Orders Number 192-85 issued by Headquarters, TNARNG, dated 4 October 1995 released the applicant from the 300th Combat Support Hospital and attached her to Headquarters and Headquarters Detachment, 230th Medical Battalion, in accordance with verbal orders of the Adjutant General. g. Orders Number 157-165 issued by Headquarters, TNARNG, dated 13 August 1996 relieved the applicant from Headquarters and Headquarters Detachment, 230th Medical Battalion, effective 31 August 1996. She was released from Headquarters and Headquarters Company, 4th Battalion, 117th Infantry Regiment and transferred to 269th Military Police Company, effective 1 September 1996. h. NGB Form 22, ending on 1 April 1997, shows the applicant was honorably discharged from the TNARNG. (1) Item 10(a) (Net Service This Period) 3 years, 11 months, and 10 days. (2) Item 10(b) (Prior Reserve Component Service) 0 years, 7 months, and 10 days. (3) Item 10(c) (Prior Active Federal Service) 1 year, 3 months, and 10 days. (4) Item 18 (Remarks) Discharge certificate and discharge orders were mailed to the last known address listed in Item 19 (Mailing Address after Separation) below. (5) Item 19 (Mailing Address after Separation) Address Z (324 Bancross Court). (6) Item 23 (Authority and Reason) National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), Chapter 3-13b(4), Paragraph 8-26(j); Army Regulation (AR) 40-501 (Standards of Medical Fitness), and Orders 84-161 dated,1 May 1997, medically unfit for retention. (7) Item 25 (Type of Certificate Used) NGB Form 55. i. Orders Number 84-161 issued by the TNARNG, dated 1 May 1997, discharged the applicant from the ARNG in accordance with verbal orders of the Adjutant General, effective 1 April 1997. The additional instructions stated that her records would be forwarded to the Personnel Service Branch within 15 working days after receipt of the orders or the effective date, whichever was later. 4. The applicant provides: a. NGB Form 22, ending on 21 April 1993, showing the applicant was honorably released from the TN Air National Guard for enlistment in another Reserve Component. b. Certificate of Professional Care, , dated 11 October 1993, certified that the applicant had surgery on her right foot. c. Clarksville Memorial Hospital note, dated 20 September 1993, showing the applicant was seem in the Emergency Room and was restricted with crutches and a splint for 4 to 5 days. d. Statement of, dated 24 March 1995, in which Dr. stated the applicant's symptoms flared while wearing her regulation boots and recommended that she be allowed to wear another form of foot gear. Continued recurrence of the symptoms may require surgical intervention. e. Headquarters, TNARNG, Memorandum, Subject: IG Action Request, dated 21 October 1996, provided the applicant with the final response to her IG Action Request for assistance with her student loan entitlement upon becoming a member of the Tennessee Army National Guard. It was determined that: (1) Her student loan entitlement was available online. (2) Further analysis of her IG Action Request revealed she was dissatisfied with the 230th Medical Battalion; specifically, LTC 's approach to her drill status after a long period of excused absences from the 300th Combat Support Hospital. It was determined that while LTC 's remarks were offensive, demeaning, and threatening to the applicant, they were not outside any legal or regulatory boundary. It was further determined that the applicant was reassigned from the 230th Medical Battalion due to unit inactivation and applied for medical separation. f. 269th Military Police Company, Memorandum, Subject: Results of SMRB, dated 22 November 1996, informed the applicant that the SMRB determined she was medically unfit for retention in accordance with AR 40-501, Chapter 3-13b(4); specifically for Neuroma, which was refractory to medical treatment, surgical treatment, and interfered with satisfactory performance of military duties. g. Joint Force Headquarters, Tennessee National Guard, Subject: IG Action Request, dated 22 April 2019, provided response to the applicant's request for assistance with her MEB and separation in 1996. It was determined that the Tennessee National Guard Medical Command was unable to find any documentation regarding her MEB from 1996. She was informed to contact the Tennessee National Guard War Records to request copies of her separation order and NGB Form 22. h. Email Correspondence, Subject: Your Issue, dated 22 April 2019, with MSG , Assistant IG, in which the applicant inquired with pertaining to the MEB/Physical Evaluation Board (PEB) process. i. Foot Conditions, Including Flatfoot (Pes Planus), Disability Benefits Questionnaire, dated 1 February 2021, was completed during the applicant's Compensation and Pension examination. (1) Section 1 (Diagnosis) She was evaluated for the claimed compensation conditions of right foot status post Morton Neuroma, left foot status post Morton Neuroma, arthritis right foot, and arthritis left foot. The date of diagnosis for each condition is as followed: * Morton's neuroma, bilateral 1983 * Hammer toes, bilateral 1980 * Arthritis, degenerative, other than post-traumatic, bilateral 2004 * Ganglion cyst, right foot - 1994 (2) Section V (Morton's Neuroma (Morton's Disease) and Metatarsalgia) Significant tenderness to palpation in the right dorsal and plantar surface along the left. j. Medical Opinion, Disability Benefits Questionnaire, dated 1 February 2021, was completed during the applicant's Compensation and Pension examination and provided support that her claimed compensation conditions were caused by or the result of the specific in-service illness, event, or injury. k. Email Correspondence, Subject: Latest Update in your case, dated 2 September 2021, with, informed the applicant of a claim for VA Higher Level Review- Duty to Assist Error. In addition, her records request with the National Personnel Records Center and a Defense Finance and Accounting Service inquiry were still pending. l. Email Correspondence, Subject: Fraley and FOIA, dated 22 October 2021, with, Office of the Adjutant General, which provided guidance for the applicant to submit her FOIA request. m. Self-Authored Statement dated 7 December 2021, to MSG , in which the applicant requested copies of her original IG request, discharge orders from the Army National Guard, and her MEB. n. Email Correspondence, Subject: FOIA Request, dated 17 December 2021, in which MSG informed the applicant that her FOIA request was referred to the Army IG Records Release Office. MSG also provided guidance to request a copy of her discharge orders and MEB. o. Email Correspondence, Subject: FOIA Request for IG Records, dated 21 December 2021, from Headquarters, Department of the Army, Office of the IG, acknowledged the applicant's request for records. Since the request was considered a Privacy Act request, the applicant was required to provide identification or complete a FOIA Declaration form no later than 28 December 2021. p. Email Correspondence, Subject: FOIA Acknowledgement 22-117, dated 27 December 2021, provided an interim response to the applicant's FOIA request in which she was informed the estimated date of completion of her request would be 21 December 2022 or longer. q. VA VBA Decision, dated 10 January 2022, completed the applicant's request for a Higher Level Review. (1) The review identified duty to assist errors for the following conditions: * Arthritis, left foot * Arthritis, right foot * Left foot status post Morton neuroma * Right foot status post Morton neuroma (2) Higher Level Review for arthritis left foot The issue was returned for failure to receive federal records. The evidence verified that a qualifying event, injury, or disease had its onset during her service, specifically, heel blisters from January 1979 to March 1979. She served on active duty from 8 January 1979 to 17 April 1980 which meets the presumptive criteria for 90 consecutive days of active service. Her claimed issue manifested to a degree of 10 percent or more following service. VA contract examination, dated 1 February 2021, documented a level of impairment to a degree of 10 percent or more. (3) Higher Level Review for arthritis right foot The issue was returned for failure to perform an examination and/or provide a medical opinion. The evidence verified that a qualifying event, injury, or disease had its onset during her service, specifically, heel blisters from January 1979 to March1979. She served on active duty from 8 January 1979 to 17 April 1980 which meets the presumptive criteria for 90 consecutive days of active service. Her claimed issue manifested to a degree of 10 percent or more following service. VA contract examination, dated 1 February 2021, documented a level of impairment to a degree of 10 percent or more. (4) Higher Level Review for arthritis left foot status post Morton Neuroma The issue was returned for failure to receive federal records. The evidence verified that a qualifying event, injury, or disease had its onset during her service, specifically, heel blisters from January 1979 to March1979. She served on active duty from 8 January 1979 to 17 April 1980 which meets the presumptive criteria for 90 consecutive days of active service. The previous findings, showing she was medically unfit for duty due to neuroma, were overturned citing insufficient evidence showing the condition developed or had its onset during a period of active service to include a period of inactive duty for training or active duty for training. (5) Higher Level Review for arthritis right foot status post Morton Neuroma The issue was returned for failure to receive federal records. The evidence verified that a qualifying event, injury, or disease had its onset during her service, specifically, heel blisters from January 1979 to March1979. She served on active duty from 8 January 1979 to 17 April 1980 which meets the presumptive criteria for 90 consecutive days of active service. The previous findings, showing she was medically unfit for duty due to neuroma, were overturned citing insufficient evidence showing the condition developed or had its onset during a period of active service to include a period of inactive duty for training or active duty for training. r. VA letter, dated 24 January 2022, informed the applicant that her Service Treatment Records could not be located based on a National Personnel Records Center inquiry on 9 September 2021. s. Certificate of Professional Care, , dated 24 April (year illegible) states the applicant was under his care for Morton Neuroma of the left foot and she was unable to wear boots comfortably. He was requesting the applicant be allowed to wear more appropriate foot gear, anything other than her boots. 5. In the processing of this case, an advisory opinion was obtained from the NGB, Chief, Special Actions Branch, on 17 November 2022. The advisory official recommended denying the applicant's request that her medical discharge from the TNARNG be reconsidered due to reprisal from her Battalion Commander. It states in pertinent part: a. The applicant served as an active member of the U.S. Air Force, Tennessee Air National Guard, and the TNARNG. She was discharged from the TNARNG on 1 April 1997 due to non-duty medical reasons that found her unfit for retention. (1) During her period of active service in the U.S. Air Force, the applicant was treated for blisters on her heels due to her boots being too narrow and too long. Her Podiatrist described her condition as Morton's Neuroma, she was issued men's size 4 extra wide boots to stop the compression on her feet and from further damage. She was discharged with separation code AFR 39-10 in which she was separated due to expiration term of service, convenience of government, minority, or dependency and hardship. (2) She later joined the Tennessee Air National Guard and was able serve honorably without any medical issues related to her feet. She was discharged and joined the TNARNG, however, her medical issues resurfaced after her unit would not allow the wear of men boots. She was honorably discharged for not qualifying for retention standards due to medical reasons. (3) The TNARNG State Service Treatment Record Management Office attempted to locate any documentation concerning her medical condition or MEB from 1996. Unfortunately, no medical documentation was located. The applicant referenced a surgery from 1993, however, she did not provide any test results, medical notes regarding therapy, or post-surgical notes in providing a service connection or aggravation of her medical condition. b. The lack of Army medical records does not allow this office to recommend approval of the applicant's requests to have her medical discharge overturned or be forward to the PEB for a review. (1) The records provided show that her medical issues did not prevent her from enlisting in the Tennessee Air National Guard or TNARNG. There are no medical profiles, medical documents, or a line of duty investigation to suggest that an incident occurred that could have aggravated her condition while on duty. Therefore, any medical issue she had was most likely not in the line of duty which caused her medical discharge from the TNARNG. (2) She provided several notes and a letter, dated 24 March 1995 from , Doctor of Podiatric Medicine, requesting that her command allow the wear of other foot gear to alleviate her flare ups. However, these documents are not a profile, nor do they show that her issues at the time were aggravated by service since there were no orders associated during the same timeframe. c. The opinion was coordinated with the assistance of the TNARNG and the TNARNG Service Treatment Record Management Office. 6. The advisory opinion was provided to the applicant to afford her the opportunity to respond to its content. She did not respond. 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 official that the available evidence is insufficient to support a conclusion that the applicant should have beeb allowed to complete processing through the Disability Evaluation System instead of being discharged due to being medically unfit for retention. Based on a preponderance of the evidence, the Board determined the reason for her discharge from the TNARNG is not in error or unjust. 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, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. AR 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3-13b(4) states the cause for referral to an MEB for neuroma; which is refractory to medical treatment, refractory to surgical treatment, is interference with the satisfactory performance of military duties. 3. NGR 600-200 (Enlisted Personnel Management), provides policies and procedures for the management of Army National Guard enlisted soldiers in the functional areas of accession and retention; civilian acquired skills; initial active duty for training and voluntary active duty' personnel management; promotion, appointment, and reduction; extensions, bars to reenlistment, immediate reenlistment and extension; and discharge. Paragraph 8-16 (Disposition of proceedings/records) states when the actual delivery of the discharge certificate and related documents cannot be accomplished due to the absence of the soldier, receipt by the soldier's organization of the order directing his or her discharge will be deemed sufficient notice. The discharge order, certificate, and original NGB Form 22 will be mailed without delay to the soldier's last official address. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005793 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1