IN THE CASE OF: 

		BOARD DATE: 17 January 2024

		DOCKET NUMBER: AR20230005881


APPLICANT REQUESTS: in effect, correction of his Army National Guard (ARNG) 
records to show he was discharged from the ARNG due to “disability” vice being 
medically unfit for retention.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD For 214 (Certificate of Release or Discharge from Active Duty)
*	2020 Honorable Discharge Order and Certificate
*	Department of Veterans Affairs Rating Decision, September 2022
*	Notice of Disagreement (VA)
*	Statements in Support of Claim

FACTS:

1.  The applicant states he had order to travel for military training to St. Croix on 
November I9, 2012 to November 21, 2012. During his return to his house on November 
21, 2012, he suffered a car accident with several damage and consequences. He 
received emergency services and hospitalization. The government and local protocol 
were continued government insurance to cover his damage and medical follow-up. His 
family followed the instructions, and he was excused to his next training date on 
November 26, 2012. However, his family never received guidance of active an LOD 
(line of duty) to receive his military benefits and follow-up. He never received guidance 
about this process. Now, the Veteran Benefits Administration is denying his claim for 
service connected because during his training/orders his unit never completed the LOD. 
His unit provided him support to complete his task until he was unable to continue and 
request social security benefits. He needed evidence of a defense authority to clarify 
this error. He attached evidence of his orders, and a co-worker’s testimony of their 
visual observation of his accident after completing that day of training.

2.  Review of the applicant’s service records shows: 

	a.  He enlisted in the Puerto Rico Army National Guard (PRARNG) on 7 April 2009. 
He entered active duty or training on 8 July 2009 and completed training for award of 
military occupational specialty (MOS) 88L, Watercraft Engineer. 

	b.  He was honorably released from ADT on 25 November 2009 to the control of the 
ARNG. His DD Form 214 shows he completed 4 months and 18 days of active service. 

	c.  On 12 November 2012, he was ordered to State Full Time National Guard Duty 
from 19 to what appears to be 26 November 2012. 

	d.  The applicant’s NCO Evaluation Reports during June 2016 to June 2019 show 
substandard duty performance and multiple poor ratings of “Did Not Meet Standards” 
with comments such as:

*	failed Army Physical Fitness Test twice
*	displayed questionable leadership ability; failed to set the example for peers 
and subordinates
*	places more importance on and effort into personal phone calls than his 
duties
*	presents sharp military appearance but needs to realize importance of 
subtlety 
*	the last position of Soldiers that I rate on this grade
*	set one of the lowest examples of leadership in the Unit and was generally 
distrusted by seniors, peers, and subordinates

	e.  On 30 October 2018, the applicant’s commander notified the applicant of the 
initiation of action to separate him from the PRARNG in accordance with Army 
Regulation (AR) 135-178 (Enlisted Administrative Separations), paragraph 14- 1k. The 
reason for the proposed action is due to his medical condition, which does not allow him 
to perform military duties required for his MOS. 

	f.  The applicant acknowledged receipt and made an election requesting referral to a 
non-duty related (NDR) physical evaluation board (PEB) for the purpose of fitness 
determination, per the following references: Army Regulation (AR) 635-40, Physical 
Evaluation for Retention, Retirement, or Separation, dated 8 February 2006; DOD 
Directive 1332.18; DOD Instructions 1332.38; and Policy/Guidance Memorandum #4; 
Processing Reserve Component (RC) Nonduty­ Related (NOR) Cases. He 
acknowledged the following: 

		(1)  He has been fully informed and understand that he is entitled to the same 
consideration and processing as any other Soldier of the Army Separated for Physical 
Disability. He understood this includes the consideration of his case by a Physical 
Evaluation Board. He also understood the Veterans Administration (VA) will determine 
entitlement to VA benefits.

		(2)  He understood that if found unfit by the PEB, he would be separated by 
reason of medical disqualification. He also understood that he would receive a 
discharge in keeping with the character of my service. as decided by the office 
designated to affect his separation. 

	g.  On 13 August 2019, a formal PEB convened and found the applicant unfit due to 
Encephalomalacia. This is a NDR case.  Soldier was diagnosed with condition after an 
accident with no date of occurrence provided. The condition is characterized by a local 
softening of the brain tissue that resulted from injury and inflammation. On 30 October 
2018, the PRARNG indicated this condition does not meet medical fitness standards. 
This condition is not compensable because the PEB's review of available military and 
civilian medical records did not reveal any evidence that the condition was either 
incurred or aggravated while on active duty. This Soldier is unfit because DA Form 
3349, Physical profile limitations associated with this condition prevents him from 
performing Section 4 functional activities 24f; live and function, without restrictions in 
any geographic or climatic area without worsening condition. Therefore, the Soldier is 
unfit. 

	h.  The PEB found the applicant physically unfit and that his disposition be referred 
for case disposition under RC (Reserve Component) regulations. 

	i.  The applicant did not concur and provided a written appeal. 

	j.  On 14 January 2020, the U.S. Army Physical Disability Agency (USAPDA) 
responded to the applicant’s rebuttal and informed the applicant thru The Adjutant 
General, that the USAPDA has noted his disagreement with the findings of the PEB and 
has reviewed his entire case. The Agency's conclusion is that his case was properly 
adjudicated by the PEB, which correctly applied the rules that govern the Physical 
Disability Evaluation System (PDES) in making its determination. The findings and 
recommendations of the PEB are supported by substantial evidence and are therefore 
affirmed. The issues raised in your appeal were responded to by the PEB in its 26 
August 2019 memorandum. This Agency concurs with the response provided by the 
PEB.

	k.  The applicant was honorably discharged from the PRARNG on 29 February 
2020, in accordance with paragraph 6-351(12), National Guard Regulation (NGR) 600-
200, Enlisted Personnel Management, dated 31 Jul 2009 (PPOM 14-008 dated 1 June 
2015). 

	l.  His NGB Form 22 (Report of Separation and Record of Service) is neither filed nor 
provided; however, his NGB Form 23B, ARNG Retirement Points History Statement 
shows he completed 8 qualifying years of service towards non-regular retirement. 

3.  By ARNG regulation (NGB 600-200), paragraph 6-35(l)(12) Soldier found medically 
unfit due to non-LOD issue with fewer than 15 years of qualified service. 

4.  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 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.

5.  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, and/or 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 requesting an affirmative line of duty 
determination (LODD) for a traumatic brain injury and other unspecified condition(s) so 
that he may use it to obtain benefits from the Veterans Benefits Administration (VBA).  
He states:
“I had order to travel for military training to St. Croix on November 19, 2012, to 
November 21, 2012.  During my return to my house on November 21, 2012, I 
suffered a car accident with several damages and consequences.  I received 
emergency services and hospitalization. The government and local protocol was 
to continued government insurance to cover my damage and medical follow-up. 
My family followed the instruction and I was excused to my next training date on 
November 26, 2012.  However, my family never received guidance of active an 
LOD to receive my military benefits and follow-up.  I never received guidance 
about this process.
Now, Veteran Benefits Administration is denying my claim for service connected 
because during my training/orders my unit never completed the LOD.  My unit 
provided me support to complete my task until I was unable to continue and 
request social security benefits. 
I needed evidence of a defense authority to clarify this error.  I attached evidence 
of my orders and also a co-workers testimony of their visual observation of my 
accident after completing that day of training.”
    c.  The Record of Proceedings outlines the applicant’s military service and the 
circumstances of the case.  The applicant’s National Guard Report of Separation and 
Record of Service (NGB Form 22) shows he entered the Army National Guard on 8 
January 2013 was honorably discharged from the Alabama Army National Guard on 4 
February 2020 Orders published by the Puerto Rico Army National Guard (PRARNG) 
show he was honorably discharged for the PRARNG effective 29 February 2020 under 
the provisions paragraph 6-35l(12) {sic – should read 6-35l(8)} of NGR 600-200, 
Enlisted Personnel Management: Medically unfit for retention per AR 40-501, Standards 
of Medical Fitness.  
    d.  MEDCHART contains a 24 November 2012 hand-written encounter from the 
Puerto Rico Medical Center which states “25-year-old male patient who suffered MBT 
pedestrian on 11/22/12 under unknown circumstances.”  It notes the applicant had 
significant head and other injuries.
    e.  MEDCHART also contains a duty limiting temporary physical profile dated 5 June 
2013 for “Unspecified condition of brain, cerebellar or brain stem laceration with open 
pulmonary trauma, cerebral contusion, contusion of forearm, other medical conditions; 
acquired deformities of knee, loose body in knee.”  There is a civilian radiologist’s report 
of a 12 
    f.  An April 2013 head CT performed for “25-year-old male status post 
MBT/pedestrian, for follow-up.”
Impression:
*	Encephalomalacic changes, more prominent at the left frontotemporal region, 
with associated ex vacuo dilatation of the left temporal horn, findings which 
represent the sequela of prior parenchymal contusions.
*	No acute intracranial pathology.
    g.  The applicant was placed on a duty limiting permanent physical profile for 
“Multifocal encephalomalacic changes” on 19 September 2018.  This condition is an 
abnormal softening of brain tissue with a number of varied etiologies of which stroke is 
the most common:
“Encephalomalacia is a type of serious brain damage that results in the softening 
or loss of brain tissue. Causes of encephalomalacia are often linked to 
inflammation or hemorrhages that are a consequence of being afflicted by 
cerebral infarction, cerebral ischemia, infection, craniocerebral trauma, or 
another injury.
Softening may be seen in a localized area or be widespread, depending on the 
underlying cause. It can affect virtually any part of the brain, possibly damaging 
tissues of the frontal, occipital, parietal, and temporal lobe. This can present with 
several motor and sensory deficits ...
Symptoms can vary from person to person, often presenting in unique ways 
depending on the severity and extent of the damage. Extreme cases of 
encephalomalacia may potentially even lead to terminal coma, depending on the 
area of brain softening.” 
(https://www.belmarrahealth.com/encephalomalacia-causes-types-treatment/)
    h.  On 30 October 2018, he requested referral to a non-duty related physical 
evaluation board (NDR PEB) for this condition.  NDR PEBs allow Reserve Component 
(RC) Service Members who are not on a call to active duty of more than 30 days and 
who are pending separation for non-duty related medical conditions but desire to remain 
in their component to enter the Disability Evaluation System (DES) for a determination 
of fitness.  A non-duty related physical evaluation board (NDR PEB) affords these 
Soldiers the opportunity to have fitness determined under the standards that apply to 
Soldiers who have the statutory right to be referred to the DES for a duty related 
medical condition.  After 2014, these boards would also look to see if the referred 
condition(s) were duty related, and if so, return them to the sending organization for 
entrance into the duty related processes of the DES.
    i.  The PRARNG narrative summary stated his condition was not duty related:
“Basis for Non-duty related process: SGT [Applicant], suffered an accident which 
was impacted by a vehicle while crossing the street which had to be taken to the 
hospital by different traumas.  At the time of the accident SGT [Applicant] was not 
under military orders.”
    j.  On 9 December 2018, his commander opined on the “Disability Evaluation System 
(DES) Commander’s Performance and Functional Statement:
“Since SGT [Applicant] returned to duty after the accident, his performance is 
below minimum standards.  His decision-making ability, communication skill and 
mechanical abilities are down to a point that I will not send him on a mission 
without direct supervision, and as a 88L Marine engineer SGT he should be able 
to perform inside an engine room with moving parts on a moving platform at sea.”
    k.  On 25 March 2019, the applicant’s informal physical evaluation board (PEB) 
determined this was an unfitting medical condition for continued military service and that 
it was not related to his military service:  
“NDR Case: Soldier was diagnosed with condition after an accident with no date 
of occurrence provided.  The condition is characterized by a local softening of the 
brain tissue that resulted from injury and inflammation.  On 30 October 2018. the 
Puerto Rico Army National Guard indicated this condition does not meet medical 
fitness standards. 
This condition is not compensable because the PEB's review of available military 
and civilian medical records did not reveal any evidence that the condition was 
either incurred or aggravated while on active duty. This Soldier is unfit because 
DA Form 3349, Physical profile limitations associated with this condition prevents 
him from performing Section 4 functional activities 24f; live and function, without 
restrictions in any geographic or climatic area without worsening condition. 
Therefore, the Soldier is unfit.”
    l.  The applicant non-concurred with the PEB and demanded a formal hearing without 
a personal appearance and representation by regularly appointed counsel.  The 
applicant requested to be found fit for duty.  
    m.  The unfit finding was maintained at his 13 August 2019 formal physical evaluation 
board.
    n.  Though the applicant’s orders show he was to be on temporary duty from 19-22 
November 2012, there is no evidence in the supporting documentation, or the electronic 
records the applicant’s injuries were incurred while the applicant was still in a qualifying 
duty status.  The available records and the applicant’s statement suggests the accident 
occurred after the completion of his duty day at which time he would not have been in a 
qualifying duty status.
    o.  The applicant submitted an appeal to the VBA following their initial denial of 
service connection for multiple injuries apparently sustained in November 2012.  He 
submitted numerous medical documents with his appeal which were not included in this 
application.  He also submitted several buddy statements which are in Spanish.
    p.  The VBA maintained their findings that his conditions were not service connected 
in their 29 September 2022 rating decision.  Their determinations were similar all the 
claimed conditions.  For his head injury:
Service connection for skull fracture.
A claimant may file a supplemental claim by submitting or identifying new and 
relevant evidence.  New evidence is evidence not previously part of the actual 
record before agency adjudicators.  Relevant evidence means evidence that 
tends to prove or disprove a matter at issue in a claim (38 CFR 3.2501)
Service connection was previously denied for your claimed condition in the 
Rating Decision dated March 2020. Consequently, you submitted a supplemental 
claim in-regards-to the aforementioned decision.
We have reviewed the evidence of record (to include VAMC San Juan treatment 
records (2019-2022); and private treatment records from Recinto de Ciencias 
Medicas (2014-2019), Centro Medico de Puerto Rico (2012), and Dr. Rodriguez-
Garcia (2016-2020)) related to your claim.  However, the evidence reviewed 
does not warrant service connection. (38 CFR 3.303, 38 CFR 3.304, 38 CFR 
3.307, 38 CFR 3.309, 38 CFR 3.159)
We can only establish service connection for death or chronic injuries, including 
myocardial infarctions and strokes, that occur while performing, or in transit to or 
from, inactive duty for training.  We can also grant service connection for 
diseases or injuries that occur during active duty for training periods. (38 CFR 
3.303, 38 CFR 3.304, 38 CFR 3.6, 38 CFR 3.1)
Your ACTIVE duty and RESERVE service treatment records (STRs) were absent 
of a history for a diagnosis and there is no medical opinion establishing a link to 
military service.  Furthermore, your "reserve" STRs do not contain a line of duty 
(LOD) determination indicating that this condition was incurred in the line of duty 
(LOD). (38 CFR 3.303, 38 CFR 3.304, 38 CFR 3.6, 38 CFR 3.1)
You also provided a lay and/or buddy statement(s) in which it was noted that you 
have had difficulty and impairment with your condition. However, the evidence of 
record does not clearly and factually show that your condition is related to military 
service. (38 CFR 3.159)
Therefore, service connection for your claimed condition remains denied.”
    q.  While the VBA’s findings do not directly affect an Army LODD, they reflect that 
they also found no evidence the applicant’s injuries were related to his military service.
    r.  It is notable that the VBA referenced treatment records covering his accident - 
Centro Medico de Puerto Rico (2012) – were unfortunately not available for review.
    s.  It is the opinion of the Agency medical advisor there is insufficient evidence to 
support an affirmative line of duty determination at this time.


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation.  Upon review of the applicant’s petition, available military records and 
the medical review, the Board concurred with the advising official finding insufficient 
evidence to support an affirmative line of duty determination at this time. The Board 
found no evidence in the supporting documentation, or the electronic records the 
applicant’s injuries were incurred while the applicant was still in a qualifying duty status. 
The Board determined, based on the opine and evidence provided by the applicant 
there is insufficient evidence of an error or unjust.  The Board agreed, based on the 
preponderance of evidence conduct during his PEB and the absent of his treatment 
records, relief is denied.

2.  This board is not an investigative body.  The Board determined despite the absence 
of the applicant’s treatment records, they agreed the burden of proof rest on the 
applicant, however, he did not provide sufficient supporting documentation and his 
service record has insufficient evidence to support the applicant’s accident occurred 
during the completion of his duty day and not after for the Board to consider correction 
of his Army National Guard (ARNG) records to show he was discharged from the ARNG 
due to “disability” vice being medically unfit for retention.


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. 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) enlisted Soldiers. Chapter 
6 sets the policies, standards, and procedures to separate enlisted Soldiers from the 
ARNG. Paragraph 6-35 provides for Separation/Discharge from State ARNG and/or 
Reserve of the Army and provides a list of reasons, applicability, and codes for 
administrative separation or discharge from the Reserve of the Army, the State ARNG 
only, or both. Sub-paragraph 6-35(l)(12) states Soldier found medically unfit due to non-
LOD issue with fewer than 15 years of qualified service. RE: 3. Loss Code MG

2.  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.

3.  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)	AR20230005881


1
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1