AR20140000088

IN THE CASE OF:

BOARD DATE: 27 August 2014

DOCKET NUMBER: AR20140000088

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests a “medical discharge under honorable conditions with suitable disability rating.”

2. The applicant states:

a. His uncharacterized discharge is in error and should be changed to honorable for medical disability. The Louisiana Army National Guard (LAARNG) was made aware of his medical conditions shortly after experiencing an adverse Military Entrance Processing Station (MEPS) inoculation reaction. All shot records have been destroyed according to a member of the LAARNG. Records retrieved from the National Personnel Records Center, under the Freedom of Information Act, provided no inoculation records.

b. The LAARNG committed multiple errors with his discharge by needlessly holding him for one year in spite of being declared physically unfit for the military, disregarding his multiple medical issues in lieu of an outside physician’s letters, and separating him for not completing initial active duty for training (IADT) instead of medically discharging him.

3. The applicant provides no additional evidence:

COUNSEL’S REQUEST, STATEMENT AND EVIDENCE:

1. Counsel requests the applicant be awarded a “medical discharge under honorable condition with suitable disability rating.”
2. Counsel states:

a. The applicant was ordered to report to basic training at Fort Benning, GA, on 9September 1986 followed by advanced individual training (AIT) on 3November 1986 despite his adverse shot reaction. His immediate supervisors did not address the issue and the applicant experienced more health difficulties, forcing him to finally see a private physician at his own cost.

b. Dr. Jxxx L. Gxxxxx Oxxxx, Medical Doctor (MD), specializing in Neurological Surgery, dispatched a letter, dated 21 August 1986, diagnosing the applicant with “small-nerve causalgia of biceps and triceps muscles due to physical injury from excessive exercise; symptomatic with persistent bilateral arm pain; and not responsive to physical therapy, relaxants or manipulation.” The physician also stated, “in view of the persistent pain, he is incapacitated from lifting and training with either arm. Therefore, he is not physically fit for military training.”

c. The applicant had a medical examination on 9 September 1986 and Dr.Axxxx Y. Cxxxx, MEPS, altered his physical status declaring him “unfit for military service” undoubtedly in reaction to Dr. Oxxxx’s letter. The LAARNG, however, held the applicant for over a year without referral to Army medical specialists, a Medical Evaluation Board (MEB), Judge Advocate General (JAG) for rights and counseling, and a complete discharge physical examination. The applicant’s IADT orders were rescinded due to the same letter and Dr. Cxxxx’s recent MEPS physical declarations. The applicant was developing medical issues yet a search of his military records provided no reason for continued duty in lieu of a medical discharge.

d. The applicant was certified by competent medical authority to be healthy in all categories upon military entry by Dr. Cxxxx, but the same MD changed induction health data after receipt of Dr. Oxxxx’s letter. It is empathically stated that no COMPLETE discharge physical examination was provided to the Guard to the best of the applicant’s memory and indicated by the lack of medical documentation in his record.

e. The applicant was placed on medical profile for a pinched nerve in his back per LAARNG memorandum dated 2 September 1987 and recommended for discharge since “Soldier is now over maximum allowable time frame for entry into IADT.” A suspense date of 16 September 1987 was given for status and availability. It seems apparent the Guard desired an IADT non-completion discharge rather than a medical with a compensation rating with subsequent entry into the Department of Veterans Affairs (VA) Health System.

f. The National Guard Bureau (NGB) Form 22 (Record of Service and Report of Separation) indicates the applicant was not available for signing though the applicant had supplied his current address through his unit commander. Though aware of his medical problems and Dr. Cxxxx’s declaring him not military qualified, the NGB Form22 indicates reenlistment (RE)-1, denoting the applicant was fully eligible for reenlistment even in lieu of his medical problems.

g. The applicant’s DA Form 2-1 (Personnel Qualification Record Part II) shows promotion to private/E-1 upon enlistment on 3 April 1986 and assignment to Detachment 1, Company C, 2nd Battalion, 156th Infantry (Mechanized (M)), in Thibodeaux, LA. He was further assigned as a rifleman/sniper to the 3rd Squad, 3rdPlatoon, same city, on 4April 1986. This was maintained until 16 March 1987 with a transfer to Company A, 2ndBattalion, 156th Infantry, Breaux Bridge, LA, again as a rifleman/sniper in lieu of Dr. Oxxxx’s letter citing him “physically unfit for military training.” The applicant was again transferred to Detachment 1, Company C, 2ndBattalion, 156th Infantry (M), in Houma, LA, as a driver on 1July 1987, though physically unfit for duty involving upper torso movement.

h. The LAARNG committed the following erroneous and unjust actions toward the applicant:

(1) The applicant was in excellent health upon entry per MEPS examination on 3 April 1986. A MEPS inoculation on 31 March “2013” (i.e., 31March 1987) (type unknown other than applicant describing the color as bright orange) participated a downward spiral culminating in Dr. Oxxxx’s diagnosis letter. The applicant was not placed on a medical profile until 2September 1987 and then held in the Guard for an additional year without explanation.

(2) The applicant was denied immediate and substantial action upon LAARNG receiving Dr. Oxxxx’s letter dated 21 August 1986, for over a year until he was placed on a temporary profile for a pinched nerve in his back on 6September 1987. Assigned duties were not commensurate with his temporary profile.

(3) The LAARNG granted an IADT non-completion discharge rather than follow separation for medical with disability rating. The applicant was deprived not only of his rights, a fair and just medical separation, but denied further VA benefits.

(4) They failed to convene an MEB to examine medical retention standards with probable referral to a Physical Evaluation Board (PEB) to determine debilitating disabilities, discharge under those auspices, and a disability compensation rating. There is no evidence he was afforded the necessary procedural rights to seek a medical discharge and it is appropriate that relief be granted.

(5) The MEPS physician administratively changed the applicant’s induction medical examination on 9 September 1986 to buttress the LAARNG’s desire to discharge. Dr.Cxxxx did not request an MEB and the applicant languished with expanding medical issues for over a year; however, the doctor did state “a reevaluation believed justified in 6months which was ignored by higher authorities.”

(6) The applicant was not apprised of his legal rights per appointment with a JAG attorney. There is no supporting documentation indicating the applicant was counseled as to his rights to accept referral to an MEB/PEB for the purpose of disability benefits.

(7) He was not administered a complete discharge physical to note his medical difficulties and have them validated nor was he given proper forms to have them listed by himself. The applicant stated contact was made with both his former company and the LAARNG Adjutant General (AG) seeking further information on the discharge. He was told by his company a medical discharge was granted, but the AG informed him of an IADT non-completion separation with no further eligibility for state or VA benefits. Thus, he was caught in a maze of misinformation plaguing him until this year.

(8) It is obvious the LAARNG failed in their commitment to the applicant’s health and welfare while simultaneously violating numerous Army and National Guard Bureau (NGB) regulations. It is only fitting the applicant be granted an honorable medical discharge with a disability rating to compensate for the LAARNG indifference, injustice, and apathy suffered at the expense of the applicant’s own health. It is the only honorable action to be taken.

3. Counsel provides copies of the applicant’s:

* DD Form 2246 (Applicant Medical Prescreening Form)
* DD Form 1966/1 (Application for Enlistment Armed Forces of the United States)
* Standard Form (SF) 93 (Report of Medical History)
* SF 88 (Report of Medical Examination)
* DD Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States)
* DA Form 2-1
* Orders Number 066-09
* Dr. Oxxxx’s letter
* Orders Number 196-18
* Request for Status memorandum
* Discharge memorandum
* DA Form 2446 (Requests for Orders)
* Orders Number 186-10
* NGB Form 22
* Personal Data information
* certification of military personnel records jacket (MPRJ)
* Conditions Summary

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are sufficient bases to waive the statute of limitations.

2. The applicant’s records contain and counsel provided copies of the applicant’s:

a. DD Form 2246, dated 31 March 1986, wherein the applicant indicated for his medical history he had no physical impairments, diseases, and had not been treated for any illness/injury.

b. SF 93, dated 3 April 1986, wherein the applicant indicated he was in good health, taking no medication, had no known allergies, and had been hospitalized for an intestinal blockage.

c. SF 88, dated 3 April 1986, which indicated the applicant’s defect of small nerve causalgia of biceps and triceps muscles, bilateral, and shows he was found qualified for service.

d. DD Form 4/1, dated 3 April 1986, enlisting the applicant in the LAARNG, in pay grade E-1, at the New Orleans MEPS, for 8 years.

3. His records also contain an NGB Form 21 (Annex A DD Form 4), dated 3April 1986, which shows he enlisted for initial assignment to Detachment 1, Company C, 2ndBattalion, 156thInfantry for training in primary military occupational specialty (MOS) 11B (infantryman) or alternate training in MOSs 94B (cook) or 76Y (unit supply specialist).

4. His records further contain and counsel further provided copies of the applicant’s:

a. DA Form 2-1 which shows his MOS as 11B; the form does not indicate he completed basic training and AIT for award of his MOS.

b. Orders Number 066-09, issued by the U.S. MEPS, New Orleans, LA, on 3April 1986, ordering the applicant to IADT in MOS 11B with a reporting date of 9September 1986.

c. Dr. Oxxxx’s letter, dated 21 August 1986, wherein he stated he had diagnosed the applicant with a small nerve causalgia of biceps and triceps muscles, bilateral, due to physical injury from excessive exercise; symptomatic with persistent, bilateral arm pain; not responsive to physical therapy, relaxants, and manipulation. In view of the persistent pain, the applicant was incapacitated from lifting and training with either arm. Therefore, he was not physically fit for military training. The applicant would be reevaluated in 6 months, December 1986.

d. Orders Number 196-18, issued by the LA MEPS, on 1 October 1986, revoking applicant’s orders for IADT.

5. On 10 December 1986, the LAARNG, Training Noncommissioned Officer (NCO), requested approval of the applicant’s request for a transfer to the 156thInfantry in Abbeville, LA, by reason of his parent moving to Lafayette and the driving distance to drill and back creating a burden on him. The applicant had been interviewed by CompanyA and he had been accepted.

6. Orders Number 6-7, dated 18 March 1987, transferred him to the 156thInfantry, Breaux Bridge, LA.

7. His records also contain and counsel also provided copies of the applicant’s:

a. Request for Status memorandum, dated 2 September 1987, wherein the Recruiting and Retention Manager, LAARNG, stated the applicant was not shipped on the scheduled date due to a temporary profile for a pinched nerve in his back. The memorandum indicated the applicant was over the maximum allowable time frame for entry into IADT and requested a submission for the applicant’s discharge. The LAARNG official requested the status and availability of the applicant by 16 September 1987.

b. Discharge memorandum, issued by the LAARNG, on 24 September 1987, wherein the Enlisted Personnel Manager advised the applicant that effective 15October 1987 he would be discharged from the LAARNG by reason of his failure to enter IADT within 360days.

c. DA Form 2446, dated September 1987, which shows orders were requested for his discharge from the LAARNG.

d. Orders Number 186-10, issued by the LAARNG, on 30 September 1987, discharging him from the LAARNG effective 15 October 1987 with an uncharacterized discharge.

e. NGB Form 22 which shows he was discharged from the LAARNG in pay grade E-1 on 15 October 1987, under the provisions of NGR 600-200, paragraph8-26u. He was credited with completing 1 year, 6 months, and 12day of net service. His service was uncharacterized and he was assigned RE-1. The form indicated the NGB Form 22 would be mailed to the last known address and the individual was discharged without actual notice.

8. Counsel also provided copies of the applicant’s:

a. Personnel Data information which pertains to military data on the applicant.

b. Certification of Military Personnel Records Jacket (MPRJ), dated
18 January 1988, wherein an LAARNG official certified the applicant’s MPRJ contained his DD Forms 4 Series, 1966 Series, and DD Form722-1 (Dental Folder Health Record) (Medical and Dental); DA Forms 873, 201, and 2-1; NGB Forms 23 (Retirement Credits Record) and 22; U.S. Army Reserve MPRJ; and discharge orders.

c. Conditions Summary which lists the applicant’s active medical conditions between May 2010 and February 2013, of joint pain (elbow), Sjogren’s Syndrome, Renal Disorder, Costocondritis (Tietze’s Syndrome), Vitamin D Deficiency, ankle joint pain, Hyperlipidemia, foot pain (soft tissue), Peripheral Neuropathy, joint pain in the toes, dry-eye syndrome, elevated blood pressure and serum enzyme levels, Hypertension, lower back pain, and a toe injury.

9. NGR 600-200, in effect at the time, governed procedures for enlisted personnel of the ARNG. Paragraph 8-26 covered reasons, applicability, codes, and board requirements for administrative discharges from the Reserve of the Army and/or the State ARNG. Paragraph 8-26(u) pertained to defective enlistment agreement which included Soldiers unable to attend IADT within appropriate maximum timeframes.

10. NGR 600-200 also stated that service would be described as uncharacterized if separation processing was initiated while a Soldier in an entry level status (not awarded and serving in an MOS) when separated.

11. Army Regulation 40-501 (Standard of Medical Fitness), chapter 3, in effect at the time, stated for the separation of an individual found to be unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating. Members with conditions, as listed in that chapter, were considered medically unfit for retention on active duty and are referred for disability processing.

DISCUSSION AND CONCLUSIONS:

1. The applicant enlisted in the LAARNG on 3 April 1986 for MOS 11B. He was ordered to IADT for MOS 11B with a reporting date of 9 September 1986. Prior to entering on IADT, on 3 April 1986, he was diagnosed with a small nerve causalgia of biceps and triceps muscles, bilateral. The examining doctor stated that the applicant was not physically fit for military training and he would be reevaluated in December 1986. There is no evidence of record and neither counsel nor the applicant provided evidence to show he was reevaluated in December 1986 and the result of the evaluation. There is nothing to show this condition was caused by an adverse shot reaction.

2. On 1 October 1986, orders were issued revoking his IADT orders. On 18March 1987, he was transferred, per his request, to another LAARNG unit in another city in LA. On 2 September 1987, the LAARNG, Recruiting and Retention Manager, LAARNG, stated the applicant was not shipped on the scheduled date due to a temporary profile for a pinched nerve in his back, the applicant was over the maximum allowable time frame for entry into IADT, and requested a submission for the applicant’s discharge.

3. On 24 September 1987, the applicant was advised that he would be discharged on 15 October 1987, by reason of his failure to enter IADT within 360days. Orders were issued on 30 September 1987 and he was discharged accordingly on 15 October 1987.

4. There is no evidence of record and neither counsel nor the applicant provided evidence to show he served on active duty for any time during that period and was determined to be medically unfit which would have supported his processing for an Army medical discharge through medical channels. Therefore, he is not entitled to a medical discharge with a disability rating.

5. In the absence of sufficient evidence to the contrary, it is presumed that he was properly separated from the USAR. His and counsel’s contentions and the documents that he submitted do not demonstrate an error or injustice in his narrative reason for separation, nor an error or injustice in the disposition of his case. When he went over the maximum allowable time frame for entry into IADT, he was discharged in accordance with regulations in effect.

6. By regulation, a Soldier in an entry level status would have their service uncharacterized. This means he had not performed duties for his character of service to be rated as honorable or otherwise. It was and still is not meant to be a negative reflect of a Soldier’s military service. He did not complete AIT for award of an MOS and perform duties in that MOS.

BOARD VOTE:

________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

_____________x___________
CHAIRPERSON

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.
ABCMR Record of Proceedings (cont) AR20140000088

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont) AR20140000088

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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