IN THE CASE OF: BOARD DATE: 5 January 2023 DOCKET NUMBER: AR20220006041 APPLICANT REQUESTS: * in effect, the issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) reflecting his physical disability separation or retirement * amendment of items 23 (Authority and Reason) and 24 (Character of Service) of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) to reflect, in effect, physical disability separation or retirement * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * grenade range photos * 101 paged self-authored timeline of events * NGB Form 22, issued on 1 October 2014 * email correspondence from Lieutenant Colonel (LTC), Georgia, Army National Guard (GAARNG), 9 November 2015 * Principal Deputy Under Secretary of Defense memorandum, 24 February 2016 * VA Heartland West Brain Magnetic Resonance Imaging (MRI), 18 January 2017 * Under Secretary of Defense for Personnel and Readiness memorandum, 25 August 2017 * two Army Review Boards Agency (ARBA) letters, 25 and 29 August 2017 * The Adjutant General, GAARNG memorandum, 29 August 2018 * Office of the Inspector General (IG), GAARNG letter, 15 October 2018 * lumbar spine MRI, 7 February 2020 * wife’s Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim, 4 January 2021 * VA Heartland West Traumatic Brain Injury (TBI)/Polytrauma Rehabilitation/Reintegration Plan of Care, 6 August 2021 * VA Heartland West, Psychologist’s and Psychiatrist’s Notes, 13 January 2022 * Kansas City VA Medical Center (VAMC), Chair, Section of Neurosurgery letter, 2 February 2022 * VA Benefits Decision letter, 25 February 2022 * additional VA and civilian medical records in excess of 700 pages 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: a. He never received a DD Form 214 and items 23 and 24 on his NGB Form 22 are in error. At the time of his discharge, he was already under out-of-pocket medical care for the service-related trauma that occurred to his spinal cord. In addition, the migraines and major depression were present, but because the head injury that occurred during the accident while on active duty training was not further investigated or even treated, his traumatic brain injury (TBI) went undiagnosed for a period of time until a specialist at University of Kansas did an MRI with contrast that revealed trauma from head injury. b. LTC, the assistant Adjutant General with the GAARNG G-1 was in communication with him via email regarding his injuries and he has attached one such email from 9 November 2015, where LTC explains that he was injured on active duty because Basic Combat Training (BCT) is active duty and that he was even willing to discuss with any VA representative to advocate for him regarding his disability. LTC was the one who realized his active duty medical records were not uploaded to the Health Information Management Service (HIMS) and he emailed them to LTC for uploading. LTC informed him that he would receive a medical review for his discharge. Unfortunately, at that time, he thought that all happened through the VA. c. He initially didn’t receive a copy of his discharge and had to continuously request a copy, but when he finally received it, the discharge orders showed he was discharged due to hardship as a sole parent, which is incorrect since he is married. The VA gave him a service-connected disability rating of 70 percent beginning 1 October 2014, as they cannot give him a disability effective date earlier than his discharge date. d. He initially submitted his request to the ABCMR within the 3-year timeframe, but was advised to first appeal to the ARNG for discharge upgrade, which he did, and the ARNG denied his request, directing him back to the Board. He has failing physical and mental health conditions related to his injury and just found council to help him. His service-connected injuries are now rated 100 percent by the VA and he receives aid and attendance due to his declining health. He respectfully requests the Board’s help to correct this oversight and help make his family whole again. His family has had to sacrifice to much to care for him when he was once the one who cared for others through volunteering with CASA [Court Appointed Special Advocate Program], volunteer firefighting, serving as director in adult education, and was heading to Officer Candidate School (OCS) in the ARNG to fulfill his dream of being on officer in order to share, learn, and lead for the protection of his country and people. e. He enlisted in the ARNG in January 2013 and entered active duty in March 2013 to attend BCT. His plan was to have a full military career and was to attend OCS to begin directly after completing Initial Entry Training (IET). On 13 May 2013, he was injured in a combat simulation in the grenade range while being used as an example by the Cadre to show how to remove another person in the unit out of harm’s way. He did this by grabbing his vest and tossing him over a barrier, in this case, a cinder block wall (see included photo). Unfortunately, when he did not clear the wall when he was tossed and his back and head hit the wall. This is the information that was provided to him by others in his BCT unit who witnessed the incident. f. His medical file states that he was pushed toward the wall while doing a drill earlier in the day, which is untrue. He was knocked unconscious for a small period of time, but regained consciousness before going to the emergency room, so it was never documented. While in the emergency room, it was unknown what was causing his left leg to swell, and the notes in his medical file read that he thought his thigh was sprained. He recalls stating that his leg was tight, but not anything further regarding his thigh. He also recalls stating that his back was in extreme pain and he had a bad headache. Neither his back nor his head were given the necessary attention to rule out injury and therefore scans were not taken. g. After the injury, he did go through physical therapy in the Athletic Training Room, but was still in immense pain and began feeling numbing and tingling in his lower extremities. If scans would have been taken, he has been told that the physical therapy program would have been different for a spinal cord injury versus the hip and leg injury physical therapy program that he was placed on. This could have possibly prevented further damage. He did report the immense pain, numbing and tingling; however, he was told that this was normal because of the boots, the injury, and that it would eventually go away. h. He was to transfer to Austin after graduation from BCT and he did make phone calls and send emails, however he did not receive a response on beginning my Advanced Individual Training (AIT) and OCS training. He did communicate effectively that he would also be moving again to the Kansas City area in October 2013 for family support in caring for his son during his recovery from his injuries. I was instructed by Mr. , the coordinator with GAARNG Interstate Transfer to find a Recruit Sustainment Program (RSP) with his Military Occupational Specialty (MOS) that would be willing to accept him. Once in Kansas City, he made contact with the Kansas National Guard Armory for further assignment, since they have the same MOS. He did receive confirmation from the Interstate Transfer Coordinator of Kansas, SFC and the Manager, Mr. at the 20th Street RSP KSARNG, that he could be accepted if he could get his file sent over by the Interstate Transfer department in Georgia. He did send communication with all contact information. i. Also during this time, he had requested medical care since he felt he needed to be seen again for his injuries, as he had not been seen since before graduation from BCT on base. His back pain, numbing and tingling, and headaches were all worsening. He had to acquire assistance through Medicaid and receive medical care through University of Kansas Medical Center. He did establish care as soon as possible in December 2013 and it was documented about my back, lower extremities, heart palpitations, anxiety, depression and headaches through multiple appointments (see medical documents from KU Medical Center). During the course of numerous medical appointments, the KU doctors attributed his injuries to the accident in active-duty training after they reviewed his Fort Jackson medical records. The first available appointment with a Psychologist, Dr. , with KU was not until February 2014, where she diagnosed him with major depressive disorder and anxiety connected to the accident in BCT (see medical notes). j. He wanted to be treated by a military doctor thinking they would be helpful in getting him back into service. He was informed by the Kansas City, Missouri VA that he could not receive treatment until he received a discharge from the ARNG. Due to my conditions getting worse and being told he would need continued help, he asked around and found out that he needed to get a hold of someone in a higher level command since he was not receiving help from my RSP in Georgia. He was referred to look up the G-1 on the internet. During his search, he found the number to the Georgia G-1. His goal was to express my desire to serve his country, but he needed help in getting transferred and needed help in getting a medical review done to find out what was going on. He thought there was no one better to care for him than the VA because they would better understand his experiences. He was routinely having nightmares of the accident and felt broken and abandoned by the ARNG. He was also now a single dad, but made sure that he had every measure in place to know that his son could be looked after, including by his biological mother who was still available, his own mother and other family members. He was feeling lost because he was given little direction and the advice he was given he followed to no avail. He was a Director of Enrollment of a college prior to joining the ARNG, was a voluntary firefighter, CASA representative, loved working out and now he cannot even walk without issues let alone do any of his hobbies or job. k. Finally, in February 2015 he was discharged by LTC , Deputy G-1, Joint Forces Headquarters with the ARNG. He entered his discharge as uncharacterized with a discharge date of 1 October 2014, in order for him to receive benefits from the VA in a more time efficient manner. He did not know that by expressing all of his thoughts LTC would give him a discharge that would later cause so many additional complications. He did express that he wanted to be looked over by a military medical doctor to obtain his/her opinion. LTC told him that he could not find him in the system and asked if he would email him his Fort Jackson medical records to have uploaded to the Health Readiness Record (HRR) so he could get medical treatment and he did as was requested (see emails from LTC ). l. Since the injuries were sustained to his spine and left leg in May 2013 and he had already been waiting more than 1 1/2 years trying to receive VA medical benefits, he was being advised that surgery was not only recommended but required. It was explained to him that if he would have gone through the medical review process initially, it could have taken several additional months to complete and he would have had to travel to a location that would have been inconvenient with serious spine, leg, and head injuries. Since he did not receive the appropriate counseling to ensure “uncharacterized” and “hardship” were the best course of action for his discharge, he believed it to be the only way to receive the benefits that he was eligible to receive. Neither before nor after did he receive any counseling over the discharge that was selected on his behalf. He was not told he could disagree before the discharge was entered or that his discharge date was going to be back dated from February 2015 to October 2014, it was simply entered and submitted and therefore made official. In fact, he was not even informed what the discharge was before it was assigned or the effective date of discharge. Once he found out what the discharge was and was told by the Veterans Service Officer (VSO) how this would impact him, he emailed LTC for help on 19 November 2015, about changing the discharge. Then LTC replied in email, “ Hello… I cannot amend the date you were discharged from the National Guard. Perhaps the attached, showing you were released from Active Duty in 2013. Please remind them that your service included reserve time in the National Guard and active time in Basic Training. It’s the active time where you got hurt and hence, were released back to the National Guard. If there’s a way for someone at the VA to call me, I would be happy to speak with them on your behalf. Hope this helps, LTC M”(see enclosed copy of emails). m. In regard to the surgery, ultimately, it was discovered that he required spinal surgery (L4-L5) microdiscectomy and hemi-laminectomy, which unfortunately has been considered a failed surgery. He has failed back syndrome, lumbar disc disease, lumbosacral radiculopathy at L5, chronic pain syndrome, spinal stenosis, disc bulge L4- L5, small disc left leg and radiculopathy in both legs and also has a herniated disc S1, and urinary incontinence, just to name some of the items associated with the spinal injury from the active-duty accident. In addition to the spinal injury, he has also been diagnosed with a TBI and post-traumatic stress disorder (PTSD), which occurred during the same training exercise and incident. n. As previously mentioned, he was knocked unconscious and regained consciousness within a few minutes, but since he was not treated at the time, he has long term effects. It was not discovered that he has a TBI until 2017, even though he reported on multiple occasions that his headaches and migraines were increasing in intensity, duration, and frequency. The computed tomography (CT) scan that was completed on 18 January 2017, without contrast, is documented in his medical file by Dr. , a Neurologist at the VA, where he reports: “solitary 0.6-centimeter sized nonspecific T2/FLAIR, bright signal focus in the right posterior frontal periventricular white matter, without enhancement or mass effect. Mild asymmetric thickening of the right temporal opercular gray matter, compared to the left side.” Additionally, he noted, “Patient does not have a family history of migraines and his symptoms are temporarily related to his injury; thus, the patient meets criteria for post-traumatic chronic migraine, and it is felt that his symptoms are secondary to his service-related injury in 2013.” He has recently been told by Dr. from University of Kansas Medical Center that the effects of his TBI are now more permanent as a result of the delay in receiving treatment for my head injury, all which could have been avoided had a scan been done and a more thorough examination been completed the day of the accident. o. In July 2016, he had submitted all documents to the ABCMR, case # AR20160014905, however they required him to file with the ARNG, which he did and his request was declined. As time has passed, the repercussions of his TBI and spinal injury have become more apparent and now require him to have a full-time caregiver - certified through Easter Seals and approved by the VA, which is my wife, . He is considered housebound by the VA. Additionally, he have been approved by Social Security Administration (SSA) disability benefits on the basis of his spinal injury. The assistance he needs with activities of daily living (ADL) and instrumental ADLs are, for example, medication management, bathing, dressing, transportation, mobility assistive device (i.e., cane or rollator are primarily used for mobility, but he also has a wheelchair for more intense pain days), financial management, just to name a few, as well as for behavioral health care by his wife/caregiver. Needing assistance with these ADLs, iADLs and behavioral health care are also some of the reasons he have received housebound status from the VA (see Caregiver In Home Assessments, Housebound DBQ, Comp and Pen exam by Dr. for PTSD, TBI and mental health). Over the years, his condition has worsened and although he believed that his more than 3,000 plus paged medical file would be reviewed objectively, it is apparent that information was intentionally redacted during the review for a discharge upgrade by the GAARNG to ensure anything that related to his injury and the incident itself could not be connected. In addition, he had all my medical file either emailed or scanned from the RSP KSARNG on 87th Street in Lenexa, Kansas and sent directly to CPT , which at that time was about 2,000 plus pages and included his Fort Jackson medical records, his records from KU beginning in December 2013 and when he started with the VA beginning 2015. Additionally, there was a notation in his file stating for his file to be sent back to GAARNG for review, signifying it will never move past the review stage. He is 100% service connected by the VA for major depressive disorder with psychosis and anxiety, which has been linked to issues from his spinal injury and PTSD from that incident. p. He additionally has service connection from the VA for pain scars/posterior trunk: 10 percent; degenerative arthritis, lumbar spine, sacroiliac injury with spinal stenosis and discectomy, with intervertebral disc syndrome: 40 percent; urinary incontinence: 40 percent; radiculopathy, lower left extremity: 20 percent; radiculopathy, lower right extremity: 20 percent; migraine headaches: 50 percent. q. He was evaluated by a VA Compensation and Pension, Dr. and she referenced notes from Dr. during his behavioral health evaluation, which were also referenced by his current psychiatrist, Dr. . Dr. noted on 22 May 2017; “Veteran reports suffering a TBI in 2013 from grenade range incident that since that time he has experienced numerous distressing symptoms to include chronic pain and numbness, headaches, regular nightmares, feeling detached from loved ones, feeling overwhelmed in public, interactions with others are often difficult, unable to drive to work, easily agitated, cannot "let things go”, increased anxiety and feelings of panic, inability to tolerate change, decreased sleep, variable appetite, has lost 25 pounds in 2 months, and struggling with financial concerns. He also feels like he is a burden to his wife, which troubles him greatly. Denies SI/HI, Plan or intent, but does report one month ago, he got a knife and was experiencing SI. He states his faith, and his son are his primary factors.” r. Dr. also wrote an evaluation stating, “the veteran states he remembers the cadre saying he was going to throw him over the wall- the veteran remembers coming off the ground and remembers the little wall. He remembers being thrown. He stated he woke up and there were many people around him. He remembers his commander and people around him. His leg was twice the size of his other leg. He stated when he woke up, he had no clue what was going on. He did not know what was happening. He stated he was very scared and could remember having so much pain going on. He remembers not being able to feel his leg on the left side. He stated he remembers seeing Army uniforms; and chaos around him. The veteran stated he remembers feeling like his life was in danger- because when he first woke up, he saw all the Army and was not sure if he was under attack. After a few minutes he began to remember where he was.” s. His psychiatrist, Dr. also wrote an evaluation of him stating, “He reports suffering a TBI with other injuries while on a grenade range in 2013. He reports he was thrown over a wall and also injured his back resulting in back surgery. He has regular nightmares, feeling overwhelmed in public, feeling detached from others, having difficulty socializing others, increased irritability, feeling he has no future, difficulty sleeping, having intrusive memories, avoiding triggers that remind him of the trauma, having persistent negative, emotional state.” t. From this one event in his timeline, where his head and back were injured while being used as an example in the grenade range during a training exercise, multiple effects have come to pass. His back has gotten worse with a failed back surgery and scar tissue has formed, among the other effects mentioned previously, which ultimately has impacted his ability to walk and perform ADLs. A TBI has been diagnosed and could have been more effectively treated had he received proper care immediately following the incident and now he struggles with permanent effects such as memory issues, emotional regulation, PTSD, just to name a few. He is working with a psychologist along with his psychiatrist, to try to assist with the chronic situations that he faces on a daily basis. u. He respectfully asks for and needs the Board’s help in correcting the errors and injustices that could have led to a possible recovery and fuller life. He needs this service discharge upgraded to a medical discharge so he can have access TRICARE. Additionally, he is working with Vocational Rehabilitation and his representative is working to help him obtain as much independence as possible, including reviewing the option for the adaptive housing grant for a home modification. This discharge change would provide approval for this grant. The VA loan would help bring wholeness to him and his family. He keeps getting denials for benefits and services due to the uncharacterized discharge stated on my NGB Form 22 and he was never issued a DD Form 214 at all, which he also should have received as he was on active duty during BCT. He is grateful for your attention to this matter and believes your decision will be just. v. In addition to the above statements, the applicant provided a self-authored timeline of events, in excess of 100 pages, which has been provided in full to the Board for review. 3. A DD Form 2808 (Report of Medical Examination) shows the applicant underwent medical examination on 15 December 2012 for the purpose of ARNG Enlistment and was found qualified for service with a physical profile rating of “1” in all factors. 4. The applicant enlisted in the GAARNG on 4 January 2013, for a period of 8 years, with a BCT station at Fort Jackson, SC, and an assurance of MOS 09S (Commissioned Officer Candidate). 5. Military Entrance Processing Station Orders 3085008, dated 10 January 2013, ordered the applicant to initial active duty for training (IADT). He was to proceed from his home address and report to his local RSP site no later than 26 March 2013 then proceed to Fort Jackson, SC, for the completion of 10 weeks of BCT in MOS 09S. After the completion of BCT, he was to report back to his local RSP site. 6. The Adjutant General, State of Georgia Orders 015-802, dated 15 January 2013, attached the applicant to Detachment 1, RSP in GA for a period of 2 years effective 5 January 2013 for administrative, training, and pay purposes. 7. The applicant’s service records contain multiple Standard Forms 600 (Chronological Record of Medical Care), dated between 4 April 2013 and 22 May 2013, which show the following: a. On 4 April 2013, the applicant was seen at the Troop Medical Clinic (TMC) Ambulatory Clinic, Moncrief Army Health Clinic (MAHC), Fort Jackson, SC, for blisters and compression arthralgia-ulna/radius/wrist (pain and inflammation I the wrist joint). He was given bacitracin, band aids, Ibuprofen, and released without limitations. b. On 15 April 2013, he was seen at the TMC Ambulatory Clinic for upper respiratory infection, pharyngitis (sore throat), headache syndromes, multiple blisters, and dermatophytosis tinea cruris (fungal infection/jock itch). He was given Benzonatate, Robitussin, Cepacol, Tylenol, Sudafed, topical ointments and released with work/duty limitations. He was to wear tennis shoes for 3 days from 15 -18 April 2013, and follow- up as needed. c. On 10 May 2013, he was seen at the MAHC Immediate Care Clinic where he was assessed with headache with a pain severity of 8/10. A review of systems shows no neck pain, no back pain and no localized swelling, no fainting, no memory lapses or loss. He had normal movement of all extremities, no muscle tenderness. No sensory exam abnormalities were noted. An electrocardiogram (ECG) with interpretation and report show sinus rhythm with first degree atrioventricular (AV) block and right bundle branch block (heartbeat signal slower on the right side of the heart). He was assessed with dehydration. His overall labs were reassuring with no signs of infection or rhabdomyolysis. He felt much better after IV fluids, so it was suggested he spend the night in medical quarters for hydration and rest to be followed up in the TMC in the morning. d. On 11 May 2013, he was seen at the TMC Ambulatory Clinic. The notes show no neck pain, no back pain, normal movement of all extremities and neurologically normal. He was assessed with conjunctivitis (pink eye) and given eye drops. He was released without limitations and to follow up as needed. e. On 13 May 2013, he was seen at the MAHC Immediate Care Clinic where he arrived via unit van with complaints of left thigh/hip and leg pain for 2 hours. He stated he was used to demonstrate combative moves and grenade training today, and his pain started when he was pushed towards the wall while doing drills earlier in the day. He denied injury to the hip or knee and thinks he may have sprained his thigh. His pain at this time is 9/10, which gets worse on walking. He denied numbness or tingling in the extremity. No previous injury. f. On 16 May 2013, he was seen at the MAHC Soldier Athlete Perform clinic where he was assessed with pain in the thigh, contusion with intact skin surface to the left anterior thigh and left lateral thigh. He was to return to training without restrictions for 3-5 days and complete all physical requirements necessary to graduate BCT as scheduled. He underwent athletic training evaluation, assisted exercises for range of motion, and cryotherapy cold packs were administered. He was released with the work/duty limitations of no running, jumping, squatting and walking/marching at own pace and distance through 19 May 2013, and follow up as needed. g. On 21 May 2013, he was seen at the MAHC Soldier Athlete Perform clinic by the athletic trainer for left knee pain at a level of 7/10. The treatment provided was therapeutic exercises per flow sheet for 20 minutes and ice following exercises for 10 – 15 minutes. He was released without limitations and was to follow up as needed. 8. A DD Form 220 (Active Duty Report), dated 22 May 2013, shows the following: * the applicant’s effective date of entry on active duty was 26 March 2013 * the date he departed from duty station at Fort Jackson, SC to home was 7 June 2013 * the length of his tour of duty was 72 days 9. The Adjutant General, State of Georgia Orders 177-957, dated 26 June 2013, attached the applicant to Detachment 10, RSP in GA, for a period of 2 years or until training complete effective 26 June 2013 for administrative, training, and pay purposes. 10. The applicant’s available records do not contain a DA Form 3349 (Physical Profile), a DA Form 2173 (Statement of Medical Examination and Duty Status), or a DD Form 261 (Report of Investigation Line of Duty Misconduct Status). 11. The applicant’s available service records do not show: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 12. There is no indication the applicant received an interstate transfer to an ARNG unit outside of the State of Georgia or that he drilled/trained with his GAARNG unit subsequent to his completion of BCT in June 2013. 13. The complete facts and circumstances surrounding the applicant’s discharge are unknown, as his discharge packet is not in his available records for review. 14. The applicant’s NGB Form 22 shows he was given an uncharacterized discharge on 1 October 2014, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management) paragraph 6-35c(1), due to dependency or hardship (includes parenthood and sole parents) affecting the Soldier’s immediate family. He was credited with 1 year, 8 months, and 28 days of net ARNG service. 15. The Adjutant General, State of Georgia Orders 042-792, dated 11 February 2015 discharged the applicant from the ARNG and as a Reserve of the Army effective 1 October 2014 under the provisions of National Guard Regulation 600-200, paragraph 6-35c(1), with assignment/loss code TK (Trainee Discharge Program Release from IADT). The applicant’s service was uncharacterized. 16. A VA Rated Disabilities eBenefits printout, dated 11 August 2016, shows the applicant had a combined service-connected disability rating of 90 percent for the following disabilities: * degenerative arthritis, lumbar spine sacroiliac injury with spinal stenosis and diskectomy involving L4-L5, 60 percent effective 12 November 2015 * radiculopathy, right lower extremity, 40 percent, effective 2 October 2014 * surgical scar, lumbar spine surgery residuals, 0 percent, effective 2 October 2014 * radiculopathy, left lower extremity including claim for left thigh injury and leg pain, 40 percent effective 2 October 2014 17. The applicant provided copies of email correspondence between himself and LTC , GAARNG, dated 9 November 2015, showing the following: a. He requested the help of LTC in amending the date of his ARNG discharge. The applicant stated the VA had issues with the fact that his spinal injury date and the date of his injury were different. He states he was medically restricted from attending training and duty in October 2013, not 2014, and his injury happened in June 2013. He requested to change the date of his discharge to remove any obstacle to VA benefits. b. LTC responded he could not amend the applicant’s discharge date from the ARNG, but sent the applicant documentation showing he was released from active duty in 2013 and advised him to remind the VA his service included active time in BCT and that it was during the active time that he was hurt and released back to the ARNG. LTC also offered to speak with someone from the VA on the applicant’s behalf. 18. There are no available documents showing the applicant was medically restricted from attending training and duty effective October 2013. 19. VA Heartland West Brain Magnetic Resonance Imaging (MRI), dated 18 January 2017, shows the applicant’s primary diagnostic code was abnormal, attention needed. The impression shows a solitary 0.6 centimeter (CM) size nonspecific T2/FLAIR bright signal focus in the right posterior frontal periventricular white matter, without enhancement or mass effect and mild asymmetric thickening of the right temporal opercular gray matter, compared to the left side. 20. In July 2016, the applicant applied to both the Army Discharge Review Board (ADRB) and the ABCMR requesting a change to his discharge to reflect medical discharge. In August and September 2017, the applicant was advised he must first apply to his State Adjutant General or the ARNG for relief, and returned his request without action. 21. A VA Form 21-2680, completed by the applicant’s wife on 2 May 2017, shows Dr signed and certified the form for examination for housebound status or permanent need for regular aid and attendance, reflecting in pertinent part the following: a. The applicant was diagnosed with radiculopathy on 30 July 2014 and degenerative disc disease, foraminal/lateral recess/central stenosis on 15 August 2014, as the result of an injury during BCT in June 2013. b. The applicant was unable to sit or stand longer than 10 minutes and was unable to walk greater than 100 feet. He was unable to walk normally and occasionally uses a cane due to severe back pain. The applicant was in constant pain and unable to work due to his problems, which were incapacitating. He was unable to perform ADLs. c. Abnormal MRI and CT scan of the lumbar spine were conducted in October and November 2014. The applicant has L4/5 radiculopathy and underwent microdiscectomy in March 2015. 22. A KC Neurology Inpatient Consult, dated 16 May 2017, shows the following: a. The applicant was involved in an accident during grenade field training in 2013 were he fell from a high surface onto hard cinderblocks and injured his back and head He experienced transient loss of consciousness during this event. He reports b/1 lower extremity numbness and tingling following his accident. He had a history of back surgery (L4-L5 laminectomy at KU) and follows there with pain management. b. He was assessed with past medical history of TBI, chronic back pain and muscle spasms and anxiety with left upper extremity numbness, tingling, and weakness. 23. The applicant’s service records contain the last page of a multi-page memorandum, providing an opinion from Captain (CPT) , GAARNG Deputy State Surgeon, signed on 12 June 2018, stating the following: a. The applicant never completed IET and did not have any of the special circumstances listed in National Guard Regulation 600-200 (610a). b. The applicant did not go through a medical evaluation board because there is no evidence the injury occurred during the grenade simulation had any lasting effects; therefore, therefore an LOD was not completed and no medical discharge. Therefore, an uncharacterized discharge is appropriate. Upon release from BCT, the applicant did not attend any training or drills prior to his discharge in 2014. 24. A memorandum from The Adjutant General, GAARNG, dated 29 August 2018, provided the applicant a decision on his appeal of his discharge characterization. The memorandum states the following: a. This responded to his request for review of his characterization of service received on 1 October 2014. His characterization of service at the time of discharge was uncharacterized. b. After carefully reviewing his request to correct his military records and the associated documents, the applicant’s request was denied and the existing characterization of his discharge was maintained because the provided documents did not support granting a medical discharge. 25. An Office of the Inspector General, GAARNG letter, dated 15 October 2018, responded to the applicant’s request for IG action, dated 16 August 2018. They conducted a thorough inquiry into his complaint and were prohibited from providing the applicant further response, directing him to the ABCMR for redress. 26. The applicant provided numerous additional medical and supporting documents in excess of 900 pages in total, all of which have been provided to the Board for review, among them are the following: a. A Lumbar Spine MRI without contrast, conducted on 7 February 2020, shows diffuse broad-based disc bulge at L4-L5 results in moderate central stenosis, moderate to severe bilateral lateral recess stenosis; small disc fragment in the left lateral recess at L5-S1, which continues to cause mild edema of the exiting S1 nerve root; and congenital spinal stenosis. b. A VA Form 21-4138, completed by the applicant’s wife on 4 January 2021, details a timetable of around the clock care she provides to the applicant as a result of his spinal injury and TBI. The care includes bathing, shaving, dressing, meal preparation, feeding, transportation to and from medical appointments, administering medication, and managing finances. c. VA Heartland West TBI/Polytrauma Rehabilitation/Reintegration Plan of Care, dated 6 August 2021, shows, given the onset and degree of the applicant’s impairment, etiology of cognitive concerns is likely associated with his provided history of mild TBI supporting a diagnosis of a mild neurocognitive disorder. While he and his wife endorsed significant impairment completing instrumental ADLS, it is difficult to ascertain the full impact of the mild TBI in the context of clinically significant psychopathology. PTSD, major depressive disorder, chronic sleep dysregulation and anxiety, separately negatively impact cognitive functioning. Acute and chronic pain can also negatively impact cognitive functioning. His current listed problems were unspecified neurocognitive disorder, chronic pain, PTSD, insomnia, anxiety, headaches, urinary incontinence, with gain/obesity. d. A VA Heartland West Group Counseling Note, dated 10 January 2022 shows the applicant was diagnosed with major depression and in an addendum, dated 18 January 2022, the staff psychiatrist indicated that the applicant needed a full time care giver for his mental health needs. e. A letter from the Chair Section of Neurosurgery, Kansas City VAMC, dated 2 February 2022, shows he first met the applicant on 19 February 2019, initially for problems with his lower back and leg pain. He has continued to have multiple medical problems with his cervical and lumbar spine with left-sided leg pain, weakness and sensory changes. He is also being treated for multiple mental health issues. He is 100 percent service-connected for major depression, 20 percent for paralysis of sciatic nerve, and 40 percent for degenerative arthritis of the spine. It is his opinion that the applicant is not capable of gainful employment and would be considered completely disabled. 27. A VA Decision Review Officer Decision, dated 23 February 2022 shows entitlement to an earlier effective date for the grant of entitlement to special monthly compensation based on aid and attendance status was granted at the intermediate rate, with a new effective date of 25 September 2020. 28. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 29. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 30. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 31. 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/or 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 an upgrade of his uncharacterized discharge and, in essence, a referral to the Disability Evaluation System (DES). He states: “Because at the time of discharge, the applicant was already under medical care out-of-pocket for the service-related trauma that occurred to a spinal cord. In addition {to} the migraines and major depression were present but because the head injury that occurred during the accident during active-duty training was not further investigated or even treated, the TBI went undiagnosed for period of time until a specialist at KU did an MRI with contrast that revealed trauma from head injury. Lieutenant Colonel T.M., the assistant adjutant general with Georgia G1, was in communication with me in regard to my injuries through email attached is one from November 9, 2015. Where he explains that I was injured on active duty because basic training is active duty. And he was willing to even discuss this with any VA representative to advocate for me on my disability .... He informed me that I would receive a medical review for my discharge. Unfortunately, at that time I thought that happened all through the VA. And eventually never received a copy in the mail of my discharge so I had to continuously request it via email from Captain G. Then I finally received a notice to hardship as being a sole parent. Which is incorrect as I am married. The VA has service connected me at 70% permanently disabled since October 1, 2014.” 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) shows the former drilling Guardsman enlisted in the Army National Guard on 4 January 2013 and was discharged from the Georgia Army National Guard (GAARNG) on 1 October 2014 under the provisions of paragraph 6-35c(1) of NGR 600- 200, Enlisted Personnel Management (31 July 2009): Dependency or hardship (includes parenthood and sole parents) affecting the Soldier’s immediate Family. c. In his self-authored statement, the applicant states he was injured on the grenade range during basic combat training: “On May 13, 2013, I was injured in a combat simulation in the grenade range, while being used as an example by the Cadre. The Cadre was using me in this example to show how to remove another person in the unit out of harm’s way by grabbing my vest and tossing me over a barrier, in this case, a cinder block wall (see included photo). Unfortunately, when tossed, I did not clear the wall and my back and head hit the wall, this is the information provided to me by those in my unit that witnessed the incident. My medical file states that I was pushed toward the wall while doing a drill earlier in the day, which is untrue. I was knocked unconscious for a small period of time, but regained consciousness before going to the emergency room, so it was never documented. While in the emergency room it was unknown what was causing my left leg to swell, and the notes in my medical file read that I thought my thigh was sprained. I recall stating that my leg was tight, but not anything further regarding my thigh. I also recall stating that my back was in extreme pain and I had a bad headache. Neither my back nor my head were given the necessary attention to rule out injury and therefore scans were not taken.” d. Review of his AHLTA records show he was seen for left thigh pain on 13 May 2013. The history as documented in this encounter: “Arrived to UCC {Urgent Care Clinic} via unit van/wc {wheelchair} with complaint of pain to left hip and leg. States he was used to demonstrate combative moves and grenade training today. Patient states pain in left leg and hip increased throughout the day. Patient comes in with complains of left thigh pain which started as he was pushed towards the wall while doing drill earlier today. Denies injury to the hip or knee. Thinks he may have sprained his thigh. Pain at this time is 9 /10 which gets worse on walking. Denies numbness or tingling in the extremity. No previous injury.” e. On his review of systems, the applicant denied headache, back pain, motor or sensory abnormalities, and symptoms of anxiety or depression. The examination was normal except for some tenderness to palpation over and mild swelling of the left thigh. The applicant was diagnosed with “pain in thigh” “likely secondary to a contusion, provided with crutches for comfort, naproxen, and a duty limiting temporary profile. f. When seen in follow-up at the Soldier Athlete Program clinic on 16 May 2013, the applicant was improved and the detail for mechanism of injury remained the same: “Soldier reports banging his left anterior thigh repeatedly into a low wall at the grenade range while performing a demonstration. Pain increases with marching, running, jumping, squats, lifting, climbing. Pain decreases with rest, stretching. Current Pain = 3/10 at rest, 8/10 with activity g. The examination was essentially the same and conservative treatment was continued. He was seen for back pain just once, on 22 May 2013: “chief complaint of right low back pain; duration of symptoms: 1-2 days; States that he felt pain while performing a low crawl at a range, denies past history of significant injury.” h. This note shows no connection of this episode of low back pain to his thigh injury 9 days earlier. The examination was not consistent with physiologic low back pain and he was released without limitations. There were no head-injury or mental health related encounters. i. The applicant received an Active Duty Report (DD Form 220) for his Basic Combat Training. Orders published by the GAARNG show the applicant was transferred to their Recruit Sustainment Program on 26 June 2013 for a period of “2 years or until training complete.” It is assumed the referenced training is advanced individual training or AIT. j. Orders published by the GAARNG on 11 February 2015 show the applicant was discharged effective 1 October 2014 with a loss code of “Trainee Discharge Program Release for IADT” under authority in paragraph 6-35c(1) of NGR 600-200. Neither his separation packet nor additional documentation addressing his administrative separation were submitted with the application nor unloaded into iPERMS. k. Numerous post-service medical documents were submitted with the application. It shows the applicant underwent an L4-5 hemilaminectomy and diskectomy in March 2015 and has continued to have problems with his lumbar spine. A lumbar MRI obtained on 7 February 2020 for left sided back pain with left sided sciatica showed the applicant to have degenerative disc disease and “moderate congenital spinal stenosis secondary to congenital shortening of the pedicles.” They also show the applicant is under treatment for mental health conditions. l. There is no evidence the applicant had a service-incurred medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. m. The applicant claims and review of his records in JLV shows he has been awarded numerous VA service-connected disability ratings, including one for depression and several related to his lumber spine. However, the DES compensates an individual only for service incurred medical 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. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. n. An uncharacterized discharge is given to individuals who separate prior to completing 180 days of military service, or when the discharge action was initiated prior to 180 days of service. For the reserve components, it also includes discharges prior to completing initial entry training (IET). There are two phases - Basic Combat Training (BCT) and AIT. Because the applicant did not complete AIT, he was in an entry level status at the time of his discharge and so received and uncharacterized discharge. This type of discharge does not attempt to characterize service as good or bad. o. It is the opinion of the ARBA Medical Advisor that neither a discharge upgrade nor a referral of this case to the Disability Evaluation System is warranted. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. 3. The Board concurred with the conclusion of the ARBA Medical Advisor that the evidence does indicate that the applicant had any medical conditions prior to his discharge that would have failed the medical retention standards of chapter 3 of Army Regulation 40-501 and been a basis for referring him to the Disability Evaluation System. The Board also noted that his uncharacterized service was appropriate based on his entry-level status (i.e., he had not completed initial entry training prior to his discharge). Based on a preponderance of the evidence, the Board determined the applicant’s discharge was 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, U.S. 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 ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are 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. c. The mere presence of a 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 a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System and 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 4. Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40 with the following caveats: a. U.S. Army Reserve (USAR) or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Normally, Reserve Component Soldiers who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 or discharged from the Reserve Component per Army Regulation 135–175 (Separation of Officers), Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative Separations), or other applicable Reserve Component regulation. They will be transferred to the Retired Reserve only if eligible and if they apply for it. d. Reserve Component Soldiers who do not meet medical retention standards may request continuance in active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reserve Component Soldiers with non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. National Guard Regulation 600-200 (Enlisted Personnel Management) prescribes the criteria, policies, process, procedures and responsibilities to classify, assign, utilize, transfer within and between States special duty assignment pay, separate, and appoint to and from Command Sergeant Major, ARNG and Army National Guard of the United States (ARNGUS) enlisted Soldiers. Paragraph 6-35 (Separation/Discharge from State ARNG and/or Reserve of the Army) provides in c for the discharge of ARNG enlisted Soldiers for the convenience of the Government based on a number of reasons, including reason (1) dependency or hardship (includes parenthood and sole parents) affecting the Soldier’s immediate family. 7. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribes policies and procedures regarding separation documents, to include the DD Form 214 (Certificate of Release or Discharge from Active Duty). a. A DD Form 214 will be prepared for Reserve component Soldiers completing 90 days or more of continuous active duty for training (ADT), Full-Time National Guard duty (FTNGD), active duty for special work (ADSW), temporary tours of active duty (TTAD) or Active Guard Reserve (AGR) service. b. A DD Form 220 (Active Duty Report) will be prepared for a Soldier enlisted under the USAR Split Training Program and the ARNGUS Alternate Training Program when he/she completes the Basic Combat Training (BCT) portion. 8. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states 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. 9. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states 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. 10. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 11. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. 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. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006041 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1