IN THE CASE OF: BOARD DATE: 10 March 2022 DOCKET NUMBER: AR20220008015 APPLICANT REQUESTS: . physical disability discharge or . honorable characterization of service APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . two Houston Spine and Neurosurgery Center School/Work Release documents, dated 29 April 2016 and 3 July 2017 . 19 pages of email correspondence, dated between April 2016 and April 2018 . Military Forces, Army National Guard (ARNG) Orders 229-049, 16 August 2016 . partial Department of Veterans Affairs (VA) Rating Decision, undated 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 he received a general discharge that should have been a medical discharge or at a minimum honorable. He was discharged for being absent without leave (AWOL) in 2016. He was having back surgery during this time and provided documentation to his unit. He did not receive a disciplinary hearing or any warning. He was discarded during annual training in 2018. He was having his first of two back surgeries for a service-connected disability and his unit prevented his Medical Evaluation Board (MEB) from processing. He transferred his GI Bill to his wife, and she used it for school. Now they just found out that because he was not honorably discharged, they will have to pay back almost $30,000. 3. The applicant initially enlisted in the Regular Army on 9 February 2001 and was honorably released from active duty on 8 February 2004, after 3 years of net active service, due to completion of required active service. 4. The applicant enlisted in the Army National Guard (ARNG) on 24 February 2005 and was honorably discharged after 1 year and 23 days service on 16 March 2006, due to expiration term of service (ETS). 5. The applicant again enlisted in the Regular Army on 6 June 2006 and served in Iraq from 10 November 2008 through 4 November 2009. 6. A DD Form 4 (Enlistment Reenlistment Document) shows the applicant, while still serving in the Regular Army, preemptively enlisted in the ARNG for a period of 3 years on 7 May 2014, pending his imminent honorable discharge. 7. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged in the rank/grade of specialist (SPC)/E-4 due to completion of required service on 14 August 2014, after 8 years, 2 months, and 9 days net active service this period. His DD Form 214 also shows he was entitled to full involuntary separation pay of $32,525.82, presumably due to reaching his retention control point (RCP), [RCP for enlisted soldiers in the rank of SPC in 2014 was 8 years] and he was transferred to a unit in the ARNG. 8. A Houston Spine and Neurosurgery Center School/Work Release, dated 29 April 2016, shows the applicant was seen on 11 April 2016 for follow-up to lumbar laminectomy level L5-S1 surgery performed on 13 May 2016. It states he was released to return to regular duty/school on 27 June 2016 and was totally disabled from school/regular work with full restrictions from 13 May 2016 through 27 June 2016. 9. The applicant provided multiple copies of email correspondence dated between April and July 2016, showing the following: a. On 29 April 2016, the applicant forwarded an email to the Gmail account of an individual named , (presumably a member of his ARNG unit) wherein he states attached to the email is a work release form from his neurosurgeon’s office. He stated he would be having back surgery on 13 May 2016 and would be disabled for 6 weeks. b. On 11 July 2016, the applicant made email contact with Sergeant First Class (SFC) of his ARNG unit, stating he was contacting her regarding the certified mail he received that day containing a Notification of Separation. He believed the unit made a mistake regarding the matter. On 29 April 2016, he sent a work/school release to Corporal (CPL) stating he would be having back surgery on 13 May 2016 and he asked CPL what documentation he needed in order to be excused from drill. He replied that the work release would be enough. His release stated he would be under complete restrictions from 13 May through 27 June 2016. c. On 12 July 2016, SFC replied to the applicant stating she forwarded his email to SFC and would disregard the notice, informing the battalion commander of the situation. She also asked the applicant if he would be at drill this weekend. His response to that question is not included in the provided email correspondence and it is unknown if he attended drill that weekend. 10. ARNG Orders 229-049, dated 16 August 2016, reduced the applicant in rank/grade from SPC/E-4 to private first class (PFC)/E-3 effective 1 August 2016, for administrative reasons in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-17 (Reduction for unsatisfactory participation). 11. A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) shows the applicant extended his enlistment in the ARNG by a period of 4 years on 16 December 2016, extending his then current expiration term of service (ETS) date of 14 August 2017 to 14 August 2021. The date of this extension post-dates both the applicant’s back surgery in May 2016 and his reduction orders in August 2016, indicating he must have been both medically qualified for extension and could not have had a Suspension of Favorable Actions Flag against him on December 2016, or he would not have been eligible to extend his contract. 12. A second A Houston Spine and Neurosurgery Center School/Work Release, dated 13 July 2017, shows the applicant was seen on 3 July 2017 for recurrent lumbosacral disc herniation and could not participate in annual training form 17 July 2017 through 22 July 2017 due to this condition and his scheduled treatment. 13. The applicant provided multiple copies of additional email correspondence dated between August 2017 and April 2018, showing the following: a. On 7 August 2017, Sergeant (SGT) , the Training Noncommissioned Officer (NCO) at the applicant’s ARNG unit forwarded an unknown attachment that was received. b. On 13 August 2017, the applicant emailed Staff Sergeant (SSG) , the Medical Readiness NCO at the applicant’s ARNG battalion, checking on the status of his MEB process and inquiring if there were any other documents needed. c. On 29 August 2017, SSG , replied to the applicant about the MEB process, informing the applicant that 3 items for his MEB/Physical Evaluation Board (PEB) packet were still needed: 1. PEB memorandum, 2. Legacy Disability Evaluation System (LDES) Soldier Understanding Memorandum, and 3. Administrative Data Worksheet. d. On 9 November 2017, SGT emailed the applicant, among others, stating the December training dates were moved to 7-9 December and that Soldier Readiness Processing (SRP) would be conducted, thus it was mandatory and there would be no excusals. e. On 4 December 2017, the applicant emailed SGT asking if there was something special needed for this drill and if they were still doing the Christmas party. f. On 27 February 2018, the applicant emailed the ARNG Office of the Inspector General, stating he was having difficulty with his unit and was in need of assistance. While attending drill the past weekend, the Battalion Medical NCO, SSG , went over his records for his MEB to see if there was any update on his case and discovered there was a DA Form 4187 (Personnel Action) showing he submitted a request for transfer to the Inactive National Guard. He informed SSG that he did not submit that form and was unaware of it’s existence. He did not with to be transferred to the Inactive National Guard and was trying to get his MEB completed. He did not want to be placed in the Inactive National Guard against his will. Furthermore, he was having issues with a Suspension of Favorable Actions Flag on his records which was keeping the MEB from going forward. He received reduction orders effective 1 August 2016 and now his unit was refusing to remove the Flag. g. On 7 March 2018, the applicant forwarded his 27 February 2018 email to the ARNG Office of the Inspector General again. Their response to his email inquiries has not been included in the email correspondence. h. On 11 April 2018, the applicant emailed SGT informing her he was in the emergency room at Hospital due having something pop in his lower back and being in severe pain ever since. He was awaiting the doctor and the results of the X-ray and computed tomography (CT) scan and would update her as information became available. i. On 25 April 2018, the applicant emailed an individual named at a .Mil account (presumably a member of his ARNG unit) asking if there was any word on his AWOL packet that was sent to the legal office. He never got to look at it when he was last at drill and wondered what the dates were as he believes something didn’t add up. The reduction orders he has are from 2016 for not going to annual training, but he was having back surgery that day and the command knew he was having surgery. Could he please look into this for him and let him know if there was any paperwork he needed to prove he was having back surgery? 14. The complete facts and circumstances surrounding the applicant’s ARNG discharge are not in his available records for review. The applicant has not provided a copy of his Notice of Separation or any other documentation indicating his dates and numbers of absences from required training. 15. The applicant has not provided copies of a DA Form 3349 (Physical Profile), DA Form 7652 (Disability Evaluation System Commander’s Performance and Functional Statement) or the LDES and PEB memoranda requested via above-referenced email from his unit. 16. ARNG Orders 173-023, dated 22 June 2018, discharged the applicant from the ARNG and as a Reserve of the Army effective 13 June 2018, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35j, due to continuous and willful absence. His service was characterized as general, under honorable conditions. 17. A partial VA Rating Decision shows the applicant was initially awarded a combined service-connected disability rating of 10 percent from the VA effective 9 February 2004. His combined service-connected disability rating was increased to 100 percent effective 13 May 2016, decreased to 80 percent effective 1 July 2016, again increased to 100 percent on 27 September 2018, decreased and increased again several times, until it has remained steady at 100 percent effective 10 December 2021. 18. 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. 19. Title 38, U.S. Code, 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. 20. 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. 21. 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, 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 22 March 2016 under honorable conditions (general) discharge and, in essence, a referral to the Disability Evaluation System (DES). He states: “I was discharged for being AWOL {absent without leave} from annual training (AT) in 2016. I was having back surgery during this time and provided documentation to my unit. I did not receive a disciplinary hearing, or any warning. I was discarded DURING AT in 2018. I was having my first of two back surgeries for a service-connected disability. My unit prevented my Med Board from processing.” b. The National Guard Report of Separation and Record of Service (NBG Form 22) for the period of service under consideration is not available for review. Orders published by the Texas Army National Guard (ARNG) show the drilling Guard Soldier was to be discharged with a general characterization of service on 13 June 2018 under the separation authority provided by paragraph 6-35j of NGR 600-200, Enlisted Personnel Management (31 July 2009): Unsatisfactory Participation. The orders assigned a loss code of “Continuous and willful absence.” c. A work release note from the Houston Spine and Neurosurgery Center states the applicant was seen on 11 April 2016, he was scheduled for lumbar laminectomy on 13 May 2016, he would be on full restrictions from 13 May – 27 June 2016, and would be released to return to regular duty on 27 June 2016. d. Orders published 16 August 2016 by the ARNG show the applicant was reduced in grade form Specialist (SPC -E04) to Private First Class (PFC – E03) effective 1 August 2016 for “Unsatisfactory Participation.” e. The applicant was placed on a duty limiting permanent physical profile for “Lower Back Injury/Pain” on 22 April 2017. f. A second work release note from the Neurosurgery Center states the applicant was seen on 3 July 2017 for recurrent lumbosacral disc herniation and “cannot participate in annual training (7/7/17 – 7/22/17) due to the above condition and scheduled treatment.” g. On 13 August 2017, the applicant emailed his medical readiness NCO, SSG , checking “on the status of my MEB process and also to see if there are any other documents you need from me.” SSG replied on 29 August 2017 that he needed three documents; Soldier’s PEB {physical Evaluation Board} Memorandum, LDES {Legacy DES} Soldier Understanding Memorandum, and an Administrative Data Worksheet. h. There are no contemporaneous encounters in AHLTA. i. The cause of his initial back injury is unknown, and there is no evidence it was related to his military service: There is no supporting medical documentation nor an affirmative line of duty determination in MEDCHART. Thus, there is no cause for a referral to the duty related side of DES. j. There is no evidence that any medical condition prevented the applicant from attending IDT or at the very least, maintaining contact with his chain of command. k. Neither the applicant’s separation packet nor documentation address his involuntary administrative separation was submitted with the application or uploaded into iPERMS. l. It is the opinion of the ARBA medical advisor there is insufficient probative documentation to support either a discharge upgrade or a referral to the DES is warranted. 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 complete facts and circumstances surrounding the applicant’s ARNG discharge are not in his available records for review. His service record contains orders issued by the ARNG discharging him from the ARNG under NGR 600-200 due to continuous and willful absence. His service was characterized as general, under honorable conditions. The Board reviewed and agreed with the medical advisor’s finding that the cause of his initial back injury is unknown, and there is no evidence it was related to his military service: There is no supporting medical documentation nor an affirmative line of duty determination, and thus there is no cause for a referral to the duty related side of disability evaluation system. Additionally, there is no evidence that any medical condition prevented the applicant from attending IDT. The Board determined that there is insufficient probative documentation to support either a discharge upgrade or a referral to the disability system is warranted. 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 a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 Physical Evaluation Board (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. Reserve Component Soldiers pending separation for In the Line of Duty injuries or illnesses will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 635-40. c. 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 (USAR Assignments, Attachments, Details, and Transfers) 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 an 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, processes, procedures and responsibilities to classify, assign, utilize, transfer within and between States, provide Special Duty Assignment Pay, separate, and appoint to and from Command Sergeant Major enlisted Soldiers of the ARNG and Army National Guard of the United Status. Chapter 6 provides guidance on separation/discharge form State ARNG and/or Reserve of the Army. Paragraph 6-35j states to refer to Army Regulation 135-178, chapter 13, for discharge due to unsatisfactory participation. Commanders may initiate discharge or recommend retention of Soldiers who have accrued 9 or more unexcused absences within a 1-year period. Soldiers must be notified by registered or certified mail of the intent and projected discharge date. 7. Army Regulation 135-178 establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard of the United States and USAR. It states a Soldier is subject to discharge for unsatisfactory participation when it is determined the Soldier is unqualified for further military service when he/she is deemed an unsatisfactory participant per Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Provisions). Service may be characterized as under other than honorable conditions when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security violations. 8. Army Regulation 135-91 defines ARNG and USAR service obligations. It states a Soldier is an unsatisfactory participant when 9 or more unexcused absences from scheduled inactive duty training periods occur during a 12-month period. 9. 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. 10. 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. 11. 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 Agencythat 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. 12. ALARACT (All Army Activities) Message 026-2014 (Change to Retention Control Points for enlisted Soldiers serving int eh Regular Army or under the Active Guard Reserve (AGR) Title 10 Programs) dated 31 January 2014, announced the change to RCPs for enlisted Soldiers serving in the Regular Army or under the AGR Title 10 programs. It states the RCP for corporals and specialists was reduced to 8 years from 12 years. Soldiers not serving on an indefinite reenlistment who reach their RCP during their current enlistment agreement will perform active service until they reach their expiration term of service (ETS) date. Soldiers involuntarily separated at their RCP with an honorable discharge, who have a minimum of 6 years of service, may be eligible for full separation pay. 13. Army Regulation 15-185 (Army Board for Correction of Military Records (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//