IN THE CASE OF: 

		BOARD DATE:  14 September 2022

		DOCKET NUMBER: AR20220002878


APPLICANT REQUESTS: in effect, a medical discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Orders 365-03, 30 December 2004
*	Orders 365-04, 30 December 2004
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Orders 272-038, 29 September 2006
*	NGB Form 22 (National Guard Bureau – Report of Separation and Record of 
Service) effective 26 September 2006
*	NGB Form 23C (Army National Guard (ARNG)n Retirement Points History 
Statement Application for Retirement Pay)
*	Army Review Boards Agency (ARBA) Letter, 2 August 2021
*	Vermont Army National Guard (VTARNG) Memorandum, 15 November 2021
*	Department of Veterans Affairs (VA) Letter, 27 August 2020
*	Standard Form (SF) 180 (Request Pertaining to Military Records), 26 August 
2021
*	Medical Records (107 pages)
*	Dental Records (18 pages)

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 is requesting a medical discharge. He was sent home for 
medical and received an honorable discharge.

3.  The applicant provides:

	a.  The below listed documents to be referenced in the service record:

*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Orders 272-038 dated 29 September 2006
*	NGB Form 22 effective 26 September 2006
	
   b.  Orders 365-03, dated 30 December 2004, released the applicant from active 
duty, not by reason of physical disability, with an effective date of 31 December 2004.

   c.  Orders 365-04, dated 30 December 2004, authorized the applicant 1 day to 
return to home station with a proceed date of 31 December 2004.

	d.  NGB Form 23C, dated 23 June 2020, provided a summary of the applicant’s 
points earned towards retirement with a total of 1,344 career points.

   e.  A letter from ARBA, dated 2 August 2021, notified the applicant that his 
application was returned without action because there was no evidence that he had 
appealed his discharge to the State Adjutant General.
   
   f.  A memorandum from the VTARNG, dated 15 November 2021, provided a timeline 
of the applicant’s discharge, as follows:

*	31 December 2004 – the applicant was released from active duty (REFRAD) 
from Camp Shelby back to the VTARNG on Order 365-03 stating “you are 
released from active duty, not by reason of physical disability”
*	26 September 2006 – the applicant received an honorable discharge for 
“Expiration of Service from the VTARNG”
   
   g.  A VA letter, dated 27 August 2020, informed the applicant his request for records 
was received and they provided the requested records on a compact disc.
   
   h.  A SF 180, dated 26 August 2021, was completed by the applicant requesting a 
copy of his medical records.
   
   i.  His medical records (107 pages) and dental records (18 pages) for treatment 
received from approximately 2004 through 2006.

4.  A review of the applicant’s service record shows:

   a.  The service record is void of the applicant’s DD Form 4 (Enlistment/Reenlistment 
Document) for his entry into the VTARNG on 1 March 1977.

	b.  Orders 31-1, dated 19 February 1992, discharged the applicant from the ARNG 
and assigned him to the U.S. Army Reserve (USAR) Control Group with an effective 
date of 18 February 1992.

	c.  Orders 127-25, dated 7 July 1993, discharged the applicant from the ARNG with 
an effective date of 18 February 1992.

	d.  On 18 February 1992, he was discharged from the VTARNG with a general, 
under honorable conditions characterization of service. His NGB Form 22 shows he 
completed 14 years, 11 months, and 18 days of net service for the period. Block 23 
(Authority and Reason) shows the applicant was discharged due to unsatisfactory 
participation.

	e.  On 3 June 1993, an NGB Form 22A (Correction to NGB Form 22) was issued 
correcting the applicant’s date of birth, awards, and indicating the applicant was 
discharged without personal notice. A copy of the NGB Form 22 was sent by certified 
mail the applicant’s last known address.

	f.  A NGB Form 23A (Request for Waiver) was submitted on 25 September 2000 
recommending a waiver request be granted for the applicant to allow him to return to 
service and “be the best Soldier he can be.”

	g.  He enlisted in the VTARNG on 27 September 2000.

   h.  The service record includes the applicant’s medical evaluations for the purpose of 
enlistment which indicated he smoked cigarettes and had an abnormal mouth and 
throat. The physician subsequently marked the applicant qualified for service.
   
*	SF 88 (Report of Medical Examination) dated 17 September 2000
*	SF93 (Report of Medical History) dated 17 September 2000
*	History for Cardiovascular Risk Assessment dated 17 September 2000

   i.  Orders 160-021, dated 9 June 2003, discharged the applicant from the VTARNG 
and assigned him to the USAR Control Group (Annual Training) with an effective date of 
1 October 2002.

	j.  He was honorably discharged from the VTARNG on 1 October 2002. His NGB 
Form 22 shows he completed 2 years and 5 days of net service for the period. Block 23 
shows the applicant was discharged due to unsatisfactory participation.

	k.  	Orders C-06-315863, dated 20 June 2003, released the applicant from the USAR 
Control Group (Annual Training) and assigned him to the USAR Control Group (Reinf) 
with an effective date of 20June 2003.
	l.  On 15 June 2004, the applicant submitted a statement requesting to enlist in the 
VTARNG. He indicated that his prior challenges were due to unreliable transportation, 
and he had relocated to Richmond which was a short distance from the Artillery unit. He 
wished to serve again and join the Artillery branch.

	m.  A NGB Form 23A was submitted on 16 June 2004 recommending a waiver 
request be granted for the applicant to allow him to return to service.

	n.  On 21 June 2004, the applicant’s waiver request was approved.

	o.  Orders C-07-418361, dated 8 July 2004, released the applicant from the USAR 
Control Group (Reinf) for enlistment in the VTARNG with an effective date of 21 June 
2004.

	p.  He enlisted in the VTARNG on 21 June 2004.

	q.  Orders 315-172, dated 10 November 2004, ordered the applicant to active duty in 
support of Operation Enduring Freedom with an effective date of 10 November 2004.

	r.  He was honorably released from active duty on 31 December 2004. His DD Form 
214 shows he completed 1 month and 21 days of active service. He was assigned 
separation code LBK and the narrative reason for separation listed as “Completion of 
Required Active Service.”

	s.  Orders 272-038, dated 29 September 2006, discharged the applicant from the 
ARNG with an effective date of 26 September 2006.

	t.  He was honorably discharged from the VTARNG on 26 September 2006. His 
NGB Form 22 shows he completed 2 years, 3 months, and 6 days of net service for the 
period. Block 23 shows the applicant was discharged due to “Expiration Term of 
Service.”
 
5.  The applicant's service record was void of documentation that shows he was treated 
for an injury or an illness that warranted his entry into the Physical Disability Evaluation 
System (PDES). Additionally, there is no indication he underwent a medical evaluation 
board (MEB) or a physical evaluation board (PEB).

6.  By regulation (AR 40-501), medical evaluation of certain enlisted military 
occupational specialties and officer duty assignments in terms of medical conditions and 
physical defects are causes for rejection or medical unfitness for these specialized 
duties. If the profile is permanent the profiling officer must assess if the Soldier meets 
retention standards. Those Soldiers on active duty who do not meet retention standards 
must be referred to a medical evaluation board. Once a determination of physical 
unfitness is made, disabilities are rated using the VA schedule of disability rating.  

7.  By regulation (AR 635-40), 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. Paragraph 3-4 states 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:

	a. 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.

	b. 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.

8.  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.

9.  Title 38, United States 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.  

10.  Title 38, Code of Federal Regulations, 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/her 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.

11.  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 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 in essence requesting a referral to the 
Disability Evaluation System (DES).  He states “sent home on medical and got 
honorable discharge.”

    b.  The Record of Proceedings outlines the applicant’s military service and the 
circumstances of the case.  His Report of Separation and Record of Service for the 
period of Service under consideration shows he entered the Army National Guard on 21 
June 2004 and was honorably discharged from the Vermont Army National Guard on 26 
September 2006 under authority provided in paragraph 8-26i of NGR 600-200, Enlisted 
Personnel Management (1 March 1997): Discharge for ETS (expiration – term of 
service).  His reenlistment eligibility code of RE1 denotes he was fully qualified to 
reenter the Army.

    c.  There are no encounters in AHLTA.

    d.  Submitted medical documentation shows the applicant was evaluated and treated 
for hypertension on numerous occasions.  

    e.  The applicant was placed on a duty limiting temporary physical profile for “Pre-
existing {i.e., not duty related) uncontrolled hypertension” on 21 December 2004.  He 
was placed on a duty limiting permanent physical profile for non-duty related 
uncontrolled hypertension on 7 May 2006.

    f.  There is no evidence the applicant had a service incurred medical problem which 
failed the medical retention standards of chapter 3, AR 40-501 or rendered him 
disqualified for further military service prior to his voluntary discharge; or which 
prevented him from reenlisting.  Thus, there was no cause for referral to the Disability 
Evaluation System.  Furthermore, there is no evidence that a medical condition 
prevented the applicant from being able to reasonably perform the duties of his office, 
grade, rank, or rating or which prevented him from reenlisting prior to his voluntary 
discharge. The has no VA service-connected disability ratings.  

    h.  It is the opinion of the Agency Medical Advisor that a referral of his case to the 
Disability Evaluation System is not 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 
Board reviewed and concurred with the advising official finding no evidence the 
applicant had a service incurred medical problem which failed the medical retention 
standards of chapter 3, AR 40-501 or rendered him disqualified for further military 
service prior to his voluntary discharge; or which prevented him from reenlisting. Thus, 
there was no cause for referral to the Disability Evaluation System. Furthermore, there 
is no evidence that a medical condition prevented the applicant from being able to 
reasonably perform the duties of his office, grade, rank, or rating or which prevented 
him from reenlisting prior to his voluntary discharge.

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, 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.  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 
(Physical 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 40-501 (Standards of Medical Fitness) governs medical fitness 
standards for enlistment, induction, appointment (including officer procurement 
programs), retention, and separation (including retirement). The Department of 
Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the 
VA as part of the process of adjudicating disability claims. It is a guide for evaluating the 
severity of disabilities resulting from all types of diseases and injuries encountered as a 
result of or incident to military service. This degree of severity is expressed as a 
percentage rating which determines the amount of monthly compensation.

4.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) 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.  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.  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.

7.  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.

8.  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)	 AR20220002878


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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