IN THE CASE OF: BOARD DATE: 17 January 2024 DOCKET NUMBER: AR20230006873 APPLICANT REQUESTS: in effect, reconsideration of his previous request for correction of his records to show he was transferred to the U.S. Army Reserve Control Group on 2 May 1983, due to medical reasons rather than unsatisfactory participation. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: Reconsideration Letter FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC85-02598, on 13 August 1986. 2. The applicant states he was unable to complete his obligation in the [U.S. Army Reserve] and he was placed in the U.S. Army Control Group. He became ill. He is totally disabled and presumably receives social security. 3. Review of the applicant’s service records shows: a. He enlisted in the Army National Guard (ARNG) on 21 March 1978. His record contains a DD Form 214 (Report of Separation from Active Duty) that shows he entered active duty for training from 16 July to 16 November 1978, completing 4 months and 1 day of training in military occupational specialty (MOS) 76X, Subsistence Supply Specialist. b. His service record contains an NGB Form 22 (Report of Separation and Record of Service) that shows he enlisted in the ALARNG on 10 March 1979, holding MOS 12C, Bridge Specialist. He was honorably separated from the ALARNG on 12 June 1980. He completed 1 year, 3 months and 3 days of ARNG service. c. His available record contains a DD Form 4 (Enlistment/Reenlistment Document) that shows he enlisted in the NYARNG on 13 June 1980. However, on 1 October 1981, NYARNG published Orders 191-112 ordering his honorable discharge effective 8 July 1981. d. His record contains another DD Form 4 (Enlistment/Reenlistment Document) that shows he enlisted in the MIARNG on 9 July 1981 for 2 years, 8 months, and 12 days. e. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 19 September 1981, shows while attending annual training, the applicant fell in the field carrying ammunition. He sustained a minor back strain. His injury was in line of duty. f. His record contains an NGB Form 22 that shows he was honorably separated from the MIARNG on 21 March 1982 to become a member of the U.S. Army Reserve (USAR). His NGB Form 22 for this period shows completion of 8 months and 12 days of ARNG service. g. His record contains a DD Form 4 (Enlistment/Reenlistment Document) that shows he enlisted in the USAR for 3 years on 18 May 1982. He was assigned to the 828th Transportation Battalion, Greensboro, AL. h. On 8 January 1983, Headquarters, 828th Transportation Battalion, Greensboro, AL published Orders 1-1 reducing the applicant from private first class (PFC)/E-3 to Private Two (PV2)/E-2 effective 8 January 1983, in accordance with paragraph 3-38(b) of Army Regulation (AR) 140-158 (Army Reserve/Enlisted Personnel Classification, Promotion, and Reduction). i. On 10 April 1983, the applicant was advised that he had accrued a record 9 or more unexcused unit training absences within a one-year period in his Reserve unit. j. On 28 April 1983, the applicant’s battalion commander submitted a statement wherein he stated: “A completed 1AA Form 840-R was mailed to SM (service member) after his absence from drill on 25, 26, & Z7 March 1983 and was signed for by someone at his last known address. After SM's ninth unexcused absence another 1AA Form 840- R was mailed to his last known address and was signed for by someone at that address. I have had no contact with SM since 6 February 1983 and have no idea as to where SM is at the present. It is assumed that the person who receipted for each of the 1AA Form 840-R's that were sent to SM by certified mail, is a relative or member of his family and gave the letter to SM. As stated above I have not seen or heard from SM since 6 February 1983. SM was aware of our drill dates for March and April 1983 and did not attend, therefore I have determined that there was not a cogent reason which prevented him from attending that training assembly which resulted in the ninth unexcused absence.” k. On 2 May 1983, Headquarters, 121st U.S. Army Reserve Command published Orders 55-1 reassigning the applicant from the 828th Transportation Battalion, Greensboro, AL to the U.S. Army Reserve Control Group (Annual Training) by reason of: Unsatisfactory Participation, effective 2 May 1983, in accordance with paragraphs 209 and 2-3 of Army Regulation (AR) 140-10 . Control Group (Assignments, Attachments, Details, and Transfers). l. On 2 May 1983 the applicant was assigned to the U.S. Army Reserve Control Group for unsatisfactory participation. In a comment dated 15 Oct 85, the Personnel Center (ARPERCEN) opined that the applicant was correctly processed. m. On 14 May 1985, the U.S. Army Reserve Personnel Center published Orders D-05-032789 honorably discharging the applicant from the USAR in accordance with Army Regulation (AR) 135-178 (Enlisted Administrative Separations) effective 17 Mat 1985. 4. On 13 August 1986, the Board considered the applicant’s case. Prior to making a decision, the Board received two summaries regarding the applicant’s case: a. On 15 October 1985, Department of the Army, Reserve Components, Chief of Policy Coordination Office provided the ABCMR with the following summary regarding the applicant’s separation: (1) On reviewing all the available records, this office can find no basis to support the applicant’s request of his military records by the ABCMR. The applicant's voluntary enlistment in the U.S. Army Reserve on 18 May 1982, on discharge from the Michigan Army National Guard, was properly executed according to the policy and procedures outlined in AR 140-111, U.S. Army Reserve Reenlistment Program (1 July 1976 as changed). (2) The applicant's release from assignment to the 828th Transportation Battalion and reassignment to the USAR Control Group (Annual Training) on 2 May 1983 was correctly processed in accordance with AR 140-10 (Assignments, Attachments, Details, and Transfers). (3) The applicant’s reassignment to the USAR Control Group (Annual Training) resulted from his unsatisfactory participation as a member of the 828th Transportation Battalion. AR 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) governs policy relating to unsatisfactory participation. This office cannot render an opinion on the applicant’s contention that his medical condition precluded his drill attendance. However, it would appear that the medical evaluation rendered by the Surgeon Generals’ office provides evidence that seems to rebut the applicant’s contention. The applicant was honorably discharged from the U.S. Army Reserve on 17 May 1985, upon the expiration of his contractual term of service. b. On 13 August 1986, the U.S. Army Reserve Evaluations and Inquiries Branch provided the following summary regarding the applicant’s case: (1) Records in this case are incomplete. There is a report of enlistment physical examination dated 16 February 1976 which was recorded as essentially normal. There is likewise a separation physical examination report of 25 August 1976, also recorded as normal, with a profile of “1-1-1-1-1-1.” The only DD Form 214 is one attesting to active duty during the period of 16 July to 16 November 1978 and reflecting no prior active service. (2) Included in the record packet is documentation of a series of visits to Veterans Administration medical facilities in the fall of 1977 for sequelae of skull fracture with chronic seizure disorder, not controlled by anticonvulsant medication and chronic headaches. X-rays obtained at that time demonstrated a preceding craniotomy. On 28 October 1977, a VA psychiatrist diagnosed organic brain syndrome secondary to epilepsy. The circumstances of this head injury and resulting complications are not elucidated by the available records. It is recorded, however, that this condition was deemed not service connected by the VA. There is a reference to a VA rating dated 1978, but a copy of that rating is not included in the records available for review. (3) Notwithstanding the preceding, there is evidence of longstanding participation in the reserve components by [Applicant]. There is a copy of physical examination dated 27 January 1981 for enlistment purposes with the findings of normal examination and a profile of “-1-1-1-1-1-1.” Medical history form completed by [Applicant] at that time carries negative answers to questions about preceding illnesses, injuries, treatment, or specifically seizures (as matter of fact all the questions on that form are answered in the negative, except the one about having vision in both eyes). (4) There is evidence of back injury suffered on 20 July 1981, while on annual training. This injury was found to be in line of duty. Appropriate treatment was rendered in the unit and, later, by the VA. There is no evidence of any resulting unfitness. In summary, there is no evidence here of a condition which would warrant physical disability processing. Preexisting head injury with uncontrolled seizures, if confirmed, would be unfitting. However, as noted, it was found to be not service connected by the VA. In the absence of evidence to the contrary, it is recommended that this application be denied. c. Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record; applicable law and regulations, and advisory opinions, the Board concluded: (1) The available records clearly show that the applicant was an unsatisfactory participant in unit training and that his assignment to the Control Group was properly processed. This conclusion is supported by the opinion of Army Personnel Center (2) Although the applicant may have received some medical care, the available . evidence does not establish that his unsatisfactory attendance resulted from medical reasons. In view of the foregoing, there is no basis upon which to grant applicant's request. 5. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant essentially requests change in reason for transfer to U.S. Army Reserve Control Group from unsatisfactory participation to medical discharge. He has applied on several occasions. In the most recent ABCMR application received in May 2023, the applicant stated that he was unable to fulfill his Reserve and Guard obligation because of mental illness and he stated that a sexual assault that occurred in boot camp was the cause of his mental illness. b. The ABCMR ROP summary of the applicant’s record was reviewed. Of import, the applicant initially enlisted in the Alabama Army National Guard (ARNG) 21Mar1978. He subsequently reenlisted in Alabama ARNG followed by enlistments in the New York and Michigan ARNG sequentially. His final period of enlisted service was in the U.S. Army Reserves (Alabama) beginning on 18May1982. The applicant was reassigned to the U.S. Army Reserve Control Group effective 02May1983 due to unsatisfactory participation. He was discharged from the U.S. Army Reserve on 17May1985, upon the expiration of his contractual term of service. His service was characterized as honorable. c. The following is a summary of significant medical conditions while in service. d. Behavioral Health (BH) condition and related According to service treatment records submitted by the applicant, he began being seen at VAMC as early as 02Sep1977 for Seizure Disorder which developed after a skull fracture sustained in a car accident. He was also seen for headaches and dizziness resulting from the accident. The exact date of the injury was unclear because different years for onset were documented; however, VAMC treatment records indicated the accident occurred 1-3 years prior. The VA also determined that the car accident and related conditions were not service connected. Previous private treatment records were not available for review. The applicant was evaluated by both VAMC psychiatry and neurology. Psychiatry’s impression was the applicant had developed Mild Organic Brain Syndrome secondary to Epilepsy (seizure disorder). This appeared to be a provisional diagnosis since specific neuropsychological testing was not documented and the specialist recommended continued evaluation by neurology. The applicant was assessed to be a poor historian—both recent and remote memory were impaired. He was described as unkempt and with psychomotor retardation. He was treated with 2 different anticonvulsants, but the condition was still poorly controlled—he was reporting daily seizures. A VAMC head CT revealed the applicant had previously undergone a craniotomy (a section of the skull was removed to perform a surgical procedure) in the left frontoparietal region. A 23Nov1977 note indicated he had refused cranioplasty to repair the defect. Social Work Services was heavily involved in his care at the time due to his lack of employment, unstable housing, and his pursuit of social security disability for his condition. Mild Organic Brain syndrome diagnosis was not in any other records including a subsequent assessment by neurology. Treatment records for Seizure Disorder were not found after December 1977. It was observed that during the 27Jan1981 Report of Medical Examination, the applicant denied history of head injury and epilepsy as well as periods of unconsciousness (section 11). It was also observed that 5 months after reassignment to U.S. Army Reserve Control Group, a 01Oct1983 Alameda County Psychiatric Emergency Service Nursing Record indicated that the applicant was found wandering around with no place to live and was admitted per 72 hour hold “as a result of mental disorder, inebriation or use of narcotics or restricted drugs” and was likely to harm himself or others and was unable to tend to his own needs. And finally, a Medical Evaluation completed 14Jun1985 reviewed the applicant’s medical records and concluded that there was no evidence of a condition which warranted physical disability processing. e. Rationale/Opinion The ARBA Medical Reviewer observes that treatment records for Seizure Disorder were available from September 1977 through December 1977 only. If the Mild Organic Brain Syndrome diagnosis had been confirmed, the condition would have not met enlistment standards of AR 40-501 (chapter 2-16, deformities of the skull of any degree associated with evidence of disease of the brain). The uncontrolled Seizure Disorder would also not have met enlistment standards of AR 40-501 (chapter 2-31, paroxysmal convulsive disorders, disturbances of consciousness, all forms of psychomotor or temporal lobe epilepsy or history thereof except for seizures associated with toxic states). That notwithstanding, service records showed he enlisted in the Alabama ARNG on 21Mar1978; reenlisted in the ALARNG on 10Mar1979; enlisted in the NYARNG on 13Jun1980; enlisted in the Michigan ARNG on 09Jul1981; and finally, he enlisted in the USAR on 18May1982. He also demonstrated the ability to juggle a complicated schedule: In the applicant’s letter responding to Command’s 25Jan1983 statement that it was expected that he attend the 5-6 February 1983 drill, he indicated he was enrolled in music school in, with 5 months remaining. He also explained that he planned to travel back on military aircraft to meet his drill obligations in Alabama where he was living at the time. In the ARBA Medical Reviewer’s opinion the applicant’s suspected Mild Organic Brain Syndrome in September 1977, could have been secondary to his seizure disorder or transient residual of traumatic brain injury due to the car accident; but more likely was due to adverse effect of his anticonvulsant medication(s), namely phenobarbital and/or other transient toxicity. Of significance, both conditions appeared to resolve substantially. JLV search today showed no mention of diagnoses or treatment for either condition in current VA community partner treatment records. In addition, there was no evidence to suggest that the applicant’s non-duty related Seizure Disorder or Organic Brain Syndrome conditions were permanently worsened by his subsequent military service. And finally, there was insufficient evidence to support that either of these conditions caused or contributed to his missing drills in March and April 1983—he was contractually permitted to enlist multiple times after car accident, and he appeared functionally capable of fulfilling his reserve obligations as well. f. Back Condition Service treatment records indicated the applicant was treated for a minor back injury sustained on 21Jul1981 during active training period 11-26 July 1981. He received In Line of Duty approval for Minor Muscular Back Strain. The applicant reported having fallen in the field at Camp Grayling, Michigan while carrying ammunition (21Jul1981 Individual Sick Slip). He was given quarters for 48 hours. In follow up on 23Jul1981, he reported back pain with bending or with certain prolonged positions. The 28Aug1981 exam showed paraspinal muscle spasm and general decreased ROM (range of motion). He was diagnosed with Low Back Pain thought to be secondary to muscle strain. He was seen for associated thigh pain 14Oct1981; however, on 04Dec1981, there was no radiation of pain, straight leg testing was negative, he had no muscle weakness, and his gait was normal. While in service, his back condition was treated with back exercises, NSAIDs, and muscle relaxant. Back radiographs were normal (13Aug1981 and 02Apr1982). Just one month prior to reenlistment, the 02Apr1982 VAMC Orthopedic Examination for the back condition for rating purposes showed his gait was normal and there was no musculoskeletal or neurologic abnormalities. ROM: Forward flexion was to 35 degrees (normal is 90 degrees); and extension was to 5 degrees (normal is 30 degrees). At the time the applicant reportedly endorsed that his ROM was limited due to pain in his abdomen. The orthopedists stated the ROM results and the applicant’s statement was consistent with “supratentorial overlay” which is interpreted to mean that the specialist felt that the applicant’s back pain likely had a behavioral health component. The specialist’s documented diagnosis was Subjective Complaint of Low Back Pain with normal physical and roentgenologic examinations. g. Rationale/Opinion The applicant had at least a dozen visits for low back pain from July to December 1981 for continued back pain and med refills (Motrin and muscle relaxant). It was observed that the applicant had unexcused absences directly before the back injury (13-14 June 1981). Since there were no treatment records available for review for the back condition after December 1981, it cannot be reasonably assumed that the unexcused absences from drill in 1983 (25, 26, 27 March 1983 and 9 and 10 April 1983) that were the cause of the reassignment to U.S. Army Reserve Control Group, were due to the back condition. It was also observed that the 28Dec1981 VA Rating Decision concluded that there was no evidence of a chronic back disability based on the 02Apr1982 exam. h. The medical records were incomplete. Service treatment records for each condition noted above were available for a limited period. JLV search today showed only VAMC administrative documents. JLV search did reveal that the applicant was not service connected by the VA for a disability. Regarding the applicant’s report of MST, no documentation was submitted for review, and no records were found to support the applicant’s claim; however, the applicant’s self-assertion alone is sufficient under Liberal Consideration to merit consideration of discharge related issues by the Board. It was noted that the 27Jan1981 Report of Medical Examination (for enlistment purposes) showed PULHES 111111; and the 02Jun1983 Accession Worksheet also showed PULHES 111111. A physical examination near the time of his reassignment to U.S. Army Reserve Control Group in May 1983 or near the time of his discharge from USAR in May 1985 was not found. Based on records available for review, evidence was insufficient to support that the applicant had a duty related physical or mental health condition which failed medical retention standards of AR 40-501 chapter 3 at the time of reassignment to U.S. Army Reserve Control Group or at the time of discharge from USAR. Referral for medical discharge processing is not recommended 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 medical review, the Board concurred with the advising official finding insufficient evidence to support that either of the conditions caused or contributed to his missing drills —he was contractually permitted to enlist multiple times after car accident, and he appeared functionally capable of fulfilling his reserve obligations as well. Additionally, the Board noted the opine found insufficient to support that the applicant had a duty related physical or mental health condition which failed medical retention standards at the time of reassignment to U.S. Army Reserve Control Group or at the time of discharge from USAR. 2. The Board agreed there is insufficient evidence to support adjudication of the applicant’s unsatisfactory performance issues based the preponderance of evidence from the unit capturing his missed drills. Furthermore, the Board determined the record is absent evidence to support his contentions for reconsideration of his previous request for correction of his records to show he was transferred to the U.S. Army Reserve Control Group on 2 May 1983, due to medical reasons rather than unsatisfactory participation. The Board agreed there is insufficient evidence to support reversal of the previous Board determination. As such the Board denied relief. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AC85-02598, on 13 August 1986. 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. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve. Paragraph 7-3, in the above cited regulation, provides guidance on length of Reserve service. 3. Army Regulation 135-180 (Army National Guard and Army Reserve- Qualifying Service for Retired Pay - Non Regular Service), indicates, in pertinent part, that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay, but must have (a) attained age 60; (b) completed a minimum of 20 years of qualifying service; and, (c) served the last 8-years of his or her qualifying service as a Reserve Components Soldier. The requirement to serve the last 8 years in a Reserve component was amended, on 1 October 2002, to the last 6-years and on 26 April 2005 this was reduced to zero years. 4. Army Regulation 140-111, Table 4-2, Rule F, Note 2, states, When the commander RPERCEN [now the US Army Human Resources Command – St. Louis] has determined that there was an implied or actual moral obligation incurred by the U.S. Army Reserve to permit the member to remain in the Ready Reserve to qualify for retired pay, based on long service in the U.S. Army Reserve, the member may be reenlisted." 5. 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. 6. 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. 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) AR20230006873 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1