IN THE CASE OF: BOARD DATE: 30 September 2022 DOCKET NUMBER: AR20220001214 APPLICANT REQUESTS: in effect, correction of his Army National Guard (ARNG) records to show he was separated due to disability instead of not being qualified for continued service due to "medical, physical, or mental condition." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * NGB Form 22 (National Guard Report of Separation and Record of Service) * Benefits letter, 19 November 2021 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 was discharged from the Army National Guard (ARNG) under honorable for medically-related injuries incurred during his 9.9 years of service. He was not afforded a medical evaluation board (MEB)/physical evaluation board (PEB) to be placed on the temporary disability retirement list or permanent disability retirement list or a military medical retirement for his service-connected disabilities in which are documented from 2012 – 2017. He was told he did not qualify because he did not have 15 plus years of service. He would like to be afforded a medical retirement from the Army National Guard as he is considered 100% service-connected disabled and no longer qualifies for any military service under the current Department of Defense regulations due to injuries sustained in the military. 3. The applicant enlisted in the New York Army National Guard (NYARNG) on 22 September 2007. He entered active duty for training (ADT) on 7 November 2007 and he was released from ADT on 30 March 2008 after completion of training in military occupational specialty 13B (Cannon Crewmember). 4. DA Form 2173 (Statement of Medical Examination and Duty Status) shows he was seen as outpatient on 19 October 2011, for sprain lumbar region injury. He injured himself on or about 10 October 2011, by lifting a base plate for howitzers and strained his lower back. His injury was classified as in the line of duty on 16 November 2011. 5. He entered active duty on 28 January 2012, in support of Operation Enduring Freedom. He served in Afghanistan from 7 May 2012 – 24 September 2012. During this period, he served as an 11B (Infantryman). 6. During his deployment another DA Form 2173 shows he was seen as outpatient on 10 July 2012, for lumbosacral spondylosis, back; sprain NOS, knee, left; acq. spondylolisthesis, back. He injured himself on or about July 2012, by stepping into a hole while running during his Army Physical Fitness Test. His injury was classified as in the line of duty on 19 January 2013. 7. He was released from active duty on 27 March 2013 due to completion of his required active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 2 months, and 1 day of active service this period. 8. Orders 145-1017, issued by Joint Force Headquarters, Latham, NY, on 25 May 2017, shows he was to be discharged from the ARNG on 21 June 2017 under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) and Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3 for medical, physical, or mental condition retention. 9. Accordingly, he was discharged form the NYARNG on 21 June 2017. His NGB Form 22 shows he completed 9 years and 9 months of net service this period. His NGB Form 22 also shows in block 23 (Authority and Reason): NGR 600-200 chapter 6 and AR 135-178 (Enlisted Administrative Separations). 10. There is no evidence of MEB/PEB withing the applicant’s records. 11. The applicant provided Department of Veterans Affairs benefits letter showing he was 100% combined service-connected disabled effective 20 July 2018. 12. 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 referral to the Disability Evaluation System (DES). He states: “I was discharged from the ARNG under HONORABLE, RE3 for Medical General for medical related injuries incurred during my 9.9 years of service. I was not afforded a MEB/PEB to be placed on the Temporary Disability Retirement List (TDRL) or Permanent Disability Retired List (PDRL) or a military medical retirement for my service-connected disabilities in which are documented from 2012-2017. ” b. The Record of Proceedings and prior denial detail the applicant’s military service and the circumstances of the case. Orders published by the New York Army National Guard show the applicant was honorably discharged on 21 June 2017 for “Medical, Physical Or Mental Condition Retention” under authority of NGR 600-200, Enlisted Personnel Management (31 July 2009), (no paragraph cited); and Chapter 3 - Medical Fitness Standards for Retention - of AR 40-501, Standards of Medical Fitness (22 December 2016). Again, no paragraph was cited c. Review of the applicant’s records in AHLTA show he was seen twice in August 2013 for low back pain while on a 5-month tour in Afghanistan (7 May 2012 thru 24 September 2012). From his first encounter on 23 August 2012: “25-year-old male with chief complaint of lower back pain to left side of back and under buttocks. Pt (patient) states he injured it initially during training in Oct 2011 at Fort Irwin, and subsequently reinjured it in a fall while on dismounted patrol in the first week of August 2012. Pt was given an LOD {line of duty} to receive further treatment upon return to New York but was unable to do so prior to deployment.” d. Upon his return, the applicant was placed in a Warrior Transition Unit for evaluation and treatment of medical conditions incurred during his Afghanistan deployment. From a 17 September 2012 AHLTA encounter: (1) “Demobilizing Soldier is referred in from our SRP {Soldier Readiness Platform} site due to lower back pain and popping in left knee. #1. Onset on or about 01 July 2012 while at Bala Baluk, Afghanistan of lower back pain while doing an APFT run when his left leg went into a crater while fully extended and he felt an immediate pain in his left lower back. Some pain, numbness or tingling going down his left posterior thigh to his left knee ... (2) Of note is that he had a similar issue in October 2011 while at the NTC {National Training Center at Fort Irwin, CA}. Treated with Flexeril and NSAID and rest and resolved for 1.5 months only to return on 01 July 2012. With activity his LBP will reach a 6 out of 10.” e. While in the WTU, he was seen by neurosurgery and orthopedics, and diagnosed with lumbar spondylolisthesis. Spondylolisthesis is one outcome of spondylolysis in which one vertebra is positioned anterior to the others. The pathology responsible for this translation of the vertebra is spondylolysis: “This condition is due to a posterior defect in the vertebral body at the pars interarticularis. Usually, this defect is due to trauma or from a chronic repetitive loading and hyperextension. If this instability results in translation of the vertebral body, spondylolisthesis has occurred.” f. Spondylolysis is the term for the isolated pars interarticularis defects/fractures responsible for this condition and are present in up to 6% of the population. They are most often either congenital or acquired from repetitive overuse in activities requiring hyperextension of the lumbar spine, e.g., gymnastics or a down lineman in football. g. The applicant received an affirmative in line of duty finding for both his left knee injury and lumbar condition on 19 January 2013. While in the WTU, he was treated conservatively for both conditions with good results and released from active duty on 27 March 2013. h. On 17 March 2017, he was upgraded from a non-duty limiting permanent physical profile to a duty limiting permanent physical profile for “Low Back Injury/Pain. i. Because the injury was from a prior period of service, it was incurred in the line of duty and the applicant was eligible for entrance into the Disability Evaluation System at that time. It is unclear why this did not occur. j. Paragraph 4-8f(3) of AR 600-8-4, Line of Duty Policy, Procedures, and Investigations (15 April 2004) “Any physical condition having its inception in line of duty during one period of Service or authorized training in any of the Armed Forces that recurs or is aggravated during later Service or authorized training, regardless of the time between, should be in line of duty. The aggravated condition must not be caused by misconduct or willful negligence.” k. The applicant sustained a lumbar spine injury while on active duty and was granted an affirmative line of duty finding for this condition. While a Soldier in the Army National Guard, the injury was re-aggravated to the point where he was placed on a duty limiting permanent profile prior to his discharge, and his career was terminated for this service incurred condition. There is no evidence of misconduct or willful negligence. Thus, he was eligible for and should have been entered into the DES. l. From paragraph 5-a of appendix 2 to enclosure 3 of Department of Defense Instruction 1332.18 SUBJECT: Disability Evaluation System (DES), 5 August 2014: “The DES compensates disabilities when they cause or contribute to career termination.” m. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings, including several related to his lumbar spine condition. n. Paragraph 7-1 of AR 40-400, Patient Administration, states in part: “If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer (PEBLO).” Note there is no mention of component or duty status. Paragraph 7-5b(5) is more direct for this case, stating that one of the situations which requires MEB consideration is “an RC member not on AD who requires evaluation because of a condition that may render him or her unfit for further duty.” o. It is the opinion of the ARBA Medical Advisor that an overdue referral to the DES for evaluation of his lumbar spine and related conditions is clearly warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence of record shows the applicant was discharged form the NYARNG on 21 June 2017 for medical, physical, or mental condition retention (no paragraph of NGR 600-200 cited). The Board also reviewed and agreed with the medical advisor’s finding that the applicant sustained a lumbar spine injury while on active duty and was granted an affirmative line of duty finding for this condition. He re-aggravated the injury to the point where he was placed on a duty limiting permanent profile prior to his discharge, and his career was terminated for this service incurred condition. There is no evidence of misconduct or willful negligence. Although his medical separation/retirement is premature, the Board found sufficient evidence to show he was eligible for and should have been entered into the Disability Evaluation Syste, BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Legacy Disability Evaluation System (DES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his type of discharge without evaluation under the IDES. 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, United States 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. National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) prescribes the criteria, policies, processes, procedures and responsibilities to classify; assign; utilize; transfer within and between states; provides Special Duty Assignment Pay; separation; extension/reenlistment, and appoint to and from Command Sergeant Major, Army National Guard (ARNG) and Army National Guard of the United States (ARNGUS) enlisted Soldiers. a. The approval authority to separate Soldiers from the State ARNG is the State Adjutant General. The Adjutant General is delegated authority to: Separate Soldiers from Reserve of the Army status, except as noted, and convene administrative separation boards. b. The separation of a Soldier from the ARNG is a function of state military authorities in accordance with states laws and regulations. However, due to the dual status of the Soldier as a Reserve of the Army, use characterization of and limitations on service descriptions contained in AR 135-178, chapter 2, section III in determining the type of separation and character of service to be issued. c. ARNG Enlisted Soldiers may be discharged for being Medically unfit for retention per AR 40-501, chapter 3. Commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per AR 40-501. If the Soldier refuses to report as directed, see paragraph 6-36t below. Commanders who do not recommend retention will request the Soldier’s discharge. When medical condition was incurred in line of duty, the procedures of AR 600-8-4 will apply. Discharge will not be ordered while the case is pending final disposition. This paragraph also includes those Soldiers who refuse or are ineligible to reclassify into a new MOS or ineligible for non-regular retirement. 3. Army Regulation (AR) 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 4. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Disability Evaluation System (DES) 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 or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. 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 service. 5. AR 135-178, establishes policies, standards, and procedures governing the administrative separation of enlisted members from the Army National Guard of the United States and the United States Army Reserve. A discharge for the purpose of complete separation from military service terminates the member’s statutory military obligation on the effective date of the discharge. 6. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 7. Section 1556 of Title 10, United States Code, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001214 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1