IN THE CASE OF:  
 
  BOARD DATE: 15 August 2023 
 
  DOCKET NUMBER: AR20220009588 
 
 
APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect physical disability discharge or retirement. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• Joint Force Headquarters Tennessee National Guard Orders 139-806,   


19 May 2014 
 
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.  On 15 May 2014, he was discharged from the Army National Guard (ARNG) on a National Guard Bureau (NGB) Form 55 (Certificate of Honorable Discharge from the Armed Forces of the United States of America (ARNG)) with an honorable discharge. The assignment/loss code was MG (Medical, Physical or Mental Condition Retention). 
 
     b.  He thinks he should have been given a medical discharge or retirement on his  
DD Form 214 due to the fact that he was pushed out of the service due to his disability and not because he wanted to get out. He had just resigned an 8-year contract and was working toward his 20 years of service with no intention of getting out. 
 
3.  A DD Form 2808 (Report of Medical Examination), dated 8 April 2006, shows the applicant underwent medical examination on the date of the form for the purpose of ARNG enlistment and was found qualified for enlistment with a physical profile rating of “1” in all factors. 
 
4.  A DD Form 4 (Enlistment/Reenlistment Document) shows the applicant enlisted in the ARNG for a period of 8 years on 8 April 2006.  
 
5.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) shows on  
19 March 2011, the applicant extended his enlistment in the ARNG by a period of 1 year. 
 
6.  The applicant’s DD Form 214 shows he was ordered to active duty in support of Operation Enduring Freedom on 10 April 2011 and served in Afghanistan from 9 June 2011 through 4 April 2012. 
 
7.  Camp Atterbury Joint Maneuver Training Center Orders 104-1001, dated 13 April 2012, released the applicant from active duty, not by reason of physical disability, and reassigned him to his ARNG unit effective 23 May 2012. 
 
8.  The applicant’s DD Form 214 shows he was honorably released from active duty on 23 May 2012, due to completion of required active service, and transferred back to the ARNG of Tennessee. He was credited with 1 year, 1 month, and 14 days of net active service this period. 
 
9.  The applicant’s available service records from this period 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 


 
10.  A second DA Form 4836 shows on 5 January 2013, the applicant extended his enlistment in the ARNG by a period of 6 years, giving him a new expiration term of service (ETS) date of 7 April 2019. 
 
11.  An NGB Form 23 (ARNG Current Annual Statement) shows as of 10 April 2013, the applicant had completed 7 years of creditable service for retired pay. 
 
12.  The applicant’s discharge packet from the ARNG, to include any pertinent medical documentation, is not in his available records for review and has not been provided by the applicant. 
 
13.  Joint Force Headquarters Tennessee National Guard Orders 139-806, dated  
19 May 2014, honorably discharged the applicant from the ARNG and as a Reserve of the Army effective 15 May 2014, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35, due to medical, physical or mental conditions. 
 
14.  The applicant’s NGB Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the ARNG on 15 May 2014, under the provisions of National Guard Regulation 600-200, paragraph 6-35, due to other designated physical or mental conditions. He was credited with 8 years total service for pay and 7 years total service for retired pay. 
 
15.  MEDICAL REVIEW: 
 
    a.  The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), and the Interactive Personnel Electronic Records Management System (iPERMS).  The ARBA Medical Advisor made the following findings and recommendations:   
    b.  The applicant is applying to the ABCMR in essence requesting a referral to the Disability Evaluation System (DES).   He states: 
“On 15 May 2014, I was discharged From the Army National Guard on NGB Form 55 as an Honorable discharge. The assignment/loss code was: Medical, Physical or Mental Condition Retention (MG).  I think I should have been given a Medical Discharge/retirement on my DD214 due to the fact I was pushed out due to my disability and not because I wanted out.  I had just resigned a new 8-year contract and was working towards my 20 years of service with no intention of getting out.” 
    c.  The Record of Proceedings details the applicant’s military service and the circumstances of the case.  His Report of Separation and Record of Service (NGB Form 22) for the period of Service under consideration shows the former Guardsman enlisted in the Army National Guard on 31 January 2011 and received an honorable discharge from the Tennessee Army National Guard (TNARNG) on 6 April 2018 under the provisions in paragraph 6-35c(6)a of NGR 600-200, Enlisted Personnel Management (31 July 2009): Other designated physical or mental conditions. Administrative separation board procedures per paragraph 6-32 are required. RE 3. 
 
    d.  The applicant’s April 2005 pre-entrance Report of Medical Examination shows that except for mild bilateral hallux valgus (aka bunions), the applicant had no defects or other diagnoses and was found fully fit for enlistment.   
 
    e.  No additional medical documentation was submitted with the application.   
 
    f.  MEDCHART contains a September – December 2012 90-day temporary profile for a “Left knee muscle tear,” and a second temporary profile from 8 January – 8 April 2013 was for “Anger Issues.”  This profile was written by an outside contractor who had not evaluated the applicant but simply wrote it based upon responses on or associated with  the applicant’s 5 January 2013 Periodic Health Assessment (PHA).  This is a common practice and profiles like this one are written to alert state medical officers and other providers of the need to evaluate the applicant based upon their PHA.  This outside civilian provider wrote the standard caveat:  
 
“State Surgeon or DSS [Deputy State Surgeon] or Case Manager review required for determination of need for permanent profile or modification of current permanent profile for diagnosis or limiting condition(s) noted on this temporary profile. Deployability to be determined by Command Authority. 
 
    g.  This PHA is not available for review.  There were no follow-on profiles or other probative documents in MEDCHART. 
    h.  Review of his record in JLV shows he was evaluated for a history on mild traumatic brain injury and feelings of depression with sleep issues in the latter half of 2012.  It also shows he has been awarded numerous VA service-connected disability ratings.  However, neither his separation packet, administrative board results, nor other documentation addressing his administrative separation was submitted with the application or uploaded into iPERMS.   
    i.  A medical advisory opinion is not possible without an understanding of the reason(s) for his involuntary administrative separation. 
 
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 applicant’s separation packet from the ARNG is not available. Other evidence shows he was honorably discharged from the ARNG on 15 May 2014, under the provisions of NGR 600-200, paragraph 6-35, due to other designated physical or mental conditions. 
The Board agreed with the medical reviewer’s finding that neither his separation packet, nor other documentation addressing his administrative separation was submitted with the application or uploaded into his official records. The Board agreed that a medical advisory opinion is not possible without an understanding of the reason(s) for his involuntary administrative separation. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 
 
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
xx: xx: xx: DENY APPLICATION 
 
 
BOARD DETERMINATION/RECOMMENDATION: 
 
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.2.   
 
  8/15/2023

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, 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. 
3.  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. 
 
4.  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. 
 
5.  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. 
 
6.  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. 
 
7.  National Guard Regulation 600-200 (Enlisted Personnel Management) prescribes he criteria, policies, processes, procedures and responsibilities to classify, assign utilize, transfer within and between States, provides special duty assignment pay, separate and appoint to and from Command Sergeant Major ARNG and Army National Guard of the Unites States enlisted Soldiers. Paragraph 6-35, in effect at the time, provides for the separation of Soldier found medically unfit for retention per Army Regulation 40-501. 
 
8.  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. 
 
9. 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//