IN THE CASE OF: BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220005002 APPLICANT REQUESTS: change his discharge from the New Jersey Army National Guard (NJARNG) to a disability/medical retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * 2022 Department of Veterans Affairs (VA) Benefits Letter * 2017 VA Service Connection Letter * 2008, 2013, and 2016 VA Rating Decision * 2008 Army National Guard Discharge Orders 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 was medically discharged from the New Jersey Army National Guard (NJARNG) during his second deployment mobilization with 6 years and 5 months of service due to having a 50% total combined VA rated disability for post- traumatic stress disorder (PTSD), Tinnitus, Lumbar Spondylosis, right leg shrapnel injury, and hearing loss all stemming from combat operations in support of Operation Iraqi Freedom (OIF) II in 2004-2005. He believes this was supposed to be a disability/medical retirement according to the guidelines. His discharge was completed as a medical discharge versus a disability/medical retirement, which did not allow him to receive disability/medical retirement pay, medical benefits under TRICARE, and retiree status. At the time of separation, he held a total combined VA disability rating of 50%, which was the reason for his medical discharge from the ARNG. Under policy, if rated above 30%, he was supposed to be given a medical/disability retirement from the Army along with all the aforementioned benefits. He is seeking to retroactively have his record corrected to a medical/disability retirement with full Army retiree benefits. He adds: a. He proudly gave all of his blood, sweat, and tears in defending this great nation for 6 years and 5 months. He would have spent my entire life in the military if it were not for his sudden and unplanned forced medical discharge during a second mobilization to Iraq in 2008 due to his 50% VA Disability Rating. He currently continues to serve in a limited capacity as a civilian Federal employee for the Department of the Army at Picatinny Arsenal, NJ as an Acquisition Analyst. To be cut short of a career where he had given his all and planned great things was quite a disappointment. And to top it all off, he wasn't even given a proper discharge with benefits. b. He earned a Purple Heart in combat, trained his body to be a lethal machine, successfully completed Air Assault school, was on his way to Airborne school, Pre- Ranger, Ranger, and then to active duty in a Ranger Battalion. Those things were unfortunately taken from him due to injuries sustained in his service to this great Nation during combat operations in Baghdad. He discovered this injustice of being medically discharged versus medically retired via a conversation with a recently retired sergeant first class with whom he served in combat operations during OIF II. He is looking to right this wrong and to recover as much of his benefits as he was entitled to when he was incorrectly discharged. 3. Review of the applicant’s service records shows: a. He enlisted in the NJARNG on 24 March 2001. He entered active duty for training from 13 September 2002 to 31 January 2003 for award of military occupational specialty 13F, Fire Support Specialist. b. He was mobilized and entered active duty on 5 January 2004. He served in Iraq in support of OIF from 22 February 2004 to 2 February 2005. c. He was honorably released from active duty on 9 March 2005 to the control of his State ARNG. His DD Form 214 shows he completed 1 year, 2 months, and 5 days of active service. It also reflects award of the Purple Heart. d. He continued his service in the ARNG and on 31 January 2007, he executed a 6- year extension of his enlistment in the ARNG. e. The complete facts and circumstances surrounding his discharge from the ARNG are not available. However, on 1 April 2008, NJARNG published Orders 092-057 honorably discharging him from the ARNG under the provisions of paragraph 8-35(c)(5) of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) due to failure to meet medical procurement standards of Army Regulation (AR) 40-501 (Standards of Medical Fitness). f. He was honorably discharged from the ARNG on 17 March 2008. His NGB Form 22 (Report of Separation and Record of Service) shows he was discharged in accordance with paragraph 8-35(c)(5) of NGR 600-200 due to failure to meet medical procurement standards of AR 40-501. He completed 6 years, 11 months, and 24 days of ARNG service. 4. He provides: a. VA Benefits Letter, dated 1 April 2022 that shows he has one or more service- connected disabilities and his combined service-connected evaluation is 100%. He is considered to be totally and permanently disabled due solely to your service-connected disabilities. Effective March 30, 2017 b. VA letter, dated 29 June 2017, that certifies service-connected disability/totally disabling at 100%, was assigned effective March 30, 2017. c. VA letters, dated 26 November 2013 and 26 May 2016, adjusting the amount of his VA compensation. d. VA letter, dated 6 October 2006 in relation to his hearing loss. 5. 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. 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. 6. 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. 7. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting a change in his discharge from the New Jersey Army National Guard (NJARNG), (due to failure to meet medical procurement standards), to a disability/medical retirement. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the NJARNG on 24 March 2001; 2) He served in Iraq from 22 February 2004 to 2 February 2005, and he earned a Purple Heart during this deployment; 3) The complete facts and circumstances surrounding his discharge from the ARNG are not available. However, on 17 March 2008, the applicant was honorably discharged due to failure to meet medical procurement standards of Army Regulation (AR) 40-501 (Standards of Medical Fitness). c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) along with the applicant’s VA Benefits letters were also reviewed. d. The applicant states he incurred PTSD and other physical disabilities in the line of duty. The applicant had positive NCOERs throughout his career, and there was no identified history of misconduct or difficulty maintaining his duties within a garrison environment. The applicant reports that when he was mobilized again to deploy with the NJARNG, he was identified as receiving 50% service-connected disability stemming from his previously deployment, and he was medically discharged from active service. The applicant provides letters from the VA stating he had a combined VA rating of 50% effective 10 March 2005, 80% 31 May 2016, and 100% 25 March 2016. A review of JLV provided concurrent evidence that the applicant has been treated for various physical injuries and behavioral health concerns since his deployment to Iraq from 2004-2005. In addition, the applicant has been awarded a Purple Heart for his service and injuries incurred. e. Based on the available information, it is the opinion of the Agency BH Advisor that the applicant has a history of PTSD and physical injuries which occurred as a result of his combat deployment. However, there is insufficient evidence the applicant was evaluated by IDES prior to his discharge from the NJARNG. Kurta Questions A. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant has been diagnosed with the following potentially mitigating BH conditions: PTSD. B. Did the condition exist or experience occur during military service? Yes, the VA’s granting of service connection for PTSD (100% Service Connected) establishes it occurred during military service. In addition, there is clear evidence in JLV the applicant was reporting symptoms of PTSD shortly after returning from his deployment C. Does the condition experience actually excuse or mitigate the discharge? Yes, there is sufficient information that the applicant has incurred physical injury and behavioral health concerns as a result of his deployment to Iraq. There is however insufficient evidence that he was appropriately referred to IDES before he was medically discharged from the NJARNG due to not meeting medical standards. Therefore, it is strongly recommended the applicant be referred to IDES at this time to be properly evaluated. BOARD DISCUSSION: 1. 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 requests for changes to discharges. The Board found the evidence supports partial relief. 2. The Board concurred with the finding of the ARBA Medical Advisor that the evidence supports a conclusion that the applicant should have been referred to the Disability Evaluation System prior to his discharge from the ARNG in 2008. The Board determined the applicant should now be referred to the Disability Evaluation System to determine if he should have been discharged for disability with severance pay or retired due to disability. 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 the evidence presented is 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 with severance pay or retired due to disability. a. If a review by the Office of The Surgeon General determines the evidence confirms referral to the Disability Evaluation System is warranted, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to his discharge. b. If a formal 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 after completion of the formal PEB. c. Should a determination be made that the applicant should be retired or discharged for disability, these proceedings serve as the authority 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 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 to any relief without benefit of the review described above. 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. National Guard Regulation 600-200, Personnel – General, 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 enlisted Soldiers. Chapter 8 of the regulation in effect at the time provided for separation/discharge from State ARNG and/or Reserve of the Army and listed reasons, applicability, and codes for administrative separation or discharge from the Reserve of the Army, the State ARNG only, or both. One of the reasons for separation includes “Not medically qualified under procurement medical fitness standards, which includes (a) Failure to meet medical procurement standards of AR 40- 501, chapter 2, prior to entry on IET including pregnancy, positive urinalysis and Human Immunodeficiency Virus (HIV) in entrance physicals (Loss Code: MG), and (b) Found to have been pregnant on enlistment (Loss Code: MG. 3. Title 38, U.S. Code 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. 4. Title 38 U.S. Code 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005002 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1