BOARD DATE: 6 February 2014 DOCKET NUMBER: AR20130003387 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, in effect, correction of his record to show he was determined to be unfit by the physical disability evaluation system (PDES) and retired by reason of physical disability. 2. The applicant states, in effect: a. He was born with a foot deformity which caused severe shin splints which caused him to struggle with the Army Physical Fitness Test (APFT). He chose to accept the pain and never quit because he wanted to serve his country. b. Prior to deploying to Iraq he failed three APFTs. The tests showed his running was deficient, but his other scores were consistently good. c. During all three APFTs he struggled with shin splints, knee pain, and severe abdominal pain accompanied by vomiting blood (hematemesis). He was eventually diagnosed while in service with gastritis and an ulcer. One day after he was discharged he was found by the Department of Veterans Affairs (VA) as being service-connected for gastro-esophageal reflux disease (GERD). The pain attributed to GERD severely affected his running. When he ran it felt like hot lava juggling around in his stomach. d. He was also service-connected for post-traumatic stress disorder (PTSD); chronic fatigue syndrome; post-concussive syndrome with tension headaches, residuals of traumatic brain injury (TBI); right and left foot patellofemoral pain syndrome; and hallux valgus of both feet. He believes he failed the APFTs because of these medical limitations which he still suffers from today. e. Despite his struggles with the APFT, he deployed to Iraq. During his deployment he was involved in an attack with the enemy. Due to the attack he now suffers from tinnitus, PTSD, memory loss, and pain in the knees and back. f. Less than one month after the attack he was forced to attempt an APFT. While in Iraq he performed three APFTs and failed every one. His military service in Iraq aggravated his asthma making it difficult for him to perform. Struggling with asthma, lumbar spine pain, shin splints, weather conditions, and a host of other maladies made it very difficult for him to pass the APFT. g. However, his struggles with the APFT did not prevent him from serving with honor next to his fellow Soldiers. While under enemy fire, he conducted himself in a military manner and was awarded the Combat Action Badge. 3. The applicant provides what appears to be a complete copy of his service and post-service medical records, VA rating decisions, and miscellaneous correspondence. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests, in effect, correction of the applicant's record to show he was determined to be unfit by the PDES and retired by reason of physical disability. 2. Counsel states: a. The applicant is a combat veteran with several medical issues including PTSD rated 50 percent (%) by the VA. The applicant and he contend the applicant should have been transferred to a medical evaluation board (MEB) while in service and if he had been evaluated the board would have found that he did not meet medical retention standards. Moreover, the applicant contends that a subsequent physical evaluation board (PEB) would have found him functionally unfit for duty and would have rated him at a level which would qualify him for a medical retirement. b. The applicant's medical limitations began to adversely affect his performance toward the end of his three-year and four-month obligation in such a manner that he did not meet medical retention standards. For the majority of the time he served, he met the medical retention standards and was fit to satisfactorily perform his duties. However, several months prior to his discharge the applicant's medical conditions became such a weight on his physical and mental status that he should have been referred to the MEB. c. The applicant suffered from a myriad of medical issues; however, an individual only needs one qualifying injury to be referred to an MEB and many of the applicant's medical issues were rated by the VA 24 hours after he was discharged from the Army to include: (1) PTSD (2) Gastritis (3) Gastric Ulcer (4) Chronic Asthma (5) Tension Headaches (6) Spondylosis d. The VA rated the applicant with PTSD 50%; chronic fatigue syndrome 40%; anterior wedging and spondylosis, lumbar spine 20%; tinnitus 10%; post-concussive syndrome with tension headaches, residuals of TBI 10%; GERD 10%; right patellofemoral pain syndrome 10%; left patellofemoral pain syndrome 10%. The applicant received a combined disability rating of 90% one day after leaving the military, but has a 100% disability rating when factoring that he is unemployable. e. The applicant's medical issues directly interfered with his ability to perform his duties. Copious medical records illustrate the years of pain he suffered from and illustrates that he was not physically fit immediately prior to his discharge. The medical conditions which gave rise to the VA ratings are conditions that should refer a Soldier to an MEB. Therefore, he could have been found ratable while in service. f. The psychological toll, when analyzed in conjunction with his physical limitations, became so overwhelming that the applicant was unfit for military service. Hence, he should have been referred to the MEB. g. In Jordan v. United States, the Court of Claims reversed a decision of the Army Board for Correction of Military Records regarding a plaintiff's fitness for military duty. The plaintiff in Jordan was not physically fit at the time of discharge, just like the applicant, but received an administrative discharge instead of an MEB referral. In Jordan the Court of Claims found the copious medical conditions contained in the VA record created substantial evidence against the Army's administrative discharge. The court said the following: "Even though the Army's evidence in the instant case considered of and by itself, might support the administrative decision by the Army to discharge the plaintiff as physically fit, we find, as hereinafter discussed, that there is opposing evidence [principally, plaintiff's medical record with the VA] so substantial in character as to detract from the weight of the evidence in support of the Army discharge, and to render it, less than substantial on the record as a whole." Like Jordan, the applicant's medical records with the VA are so substantial in character that they undermine the Army's discharge characterization. Like the plaintiff in Jordan, the applicant should have been referred to the MEB because the balance of the evidence illustrates he was not physically fit immediately prior to discharge. 3. Counsel provides a 22-page brief in support of a discharge upgrade to honorable and a change in the narrative reason to physical standards in addition to support of a medical discharge and medical retirement with exhibits A-Z. He further provides what appears to be a complete copy of the applicant's service and post-service medical records, VA rating decisions, and miscellaneous correspondence. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 18 January 2007. He completed training and was awarded military occupational specialty 21B (Combat Engineer). Evidence further shows he served in Iraq in support of Operation Iraqi Freedom for the period 6 October 2008 to 3 October 2009. 2. The applicant's record contains negative counseling for failing to pass the APFT on 30 November 2007, 26 June and 23 September 2008, and 12 May, 17 July, and 10 August 2009. Evidence further shows that on 17 July 2009 the applicant was 50 pounds over the screening table weight and 5% over his maximum allowable body fat. The available records do not indicate he was placed on a physical profile. 3. The applicant's record contains a memorandum, dated 12 January 2010, which states the applicant received a mental health evaluation as the result of a command referral. He was screened for PTSD and TBI and was found to have an adjustment disorder with anxiety and depressed mood; however, the applicant did not have a psychiatric condition which would warrant disposition through medical channels. Treatment at this time was not deemed necessary. The applicant was psychiatrically cleared for whatever administrative action was deemed appropriate by the command. 4. The applicant's record contains a DD Form 2697 (Report of Medical Assessment), dated 20 January 2010, which shows the applicant underwent a separation medical assessment at the Physical Examination Center, Irwin Army Community Hospital, Fort Riley, KS. The applicant acknowledged he did not have any conditions which currently limited his ability to work in his primary military specialty or required geographic or assignment limitations. His health care provider commented the applicant was being treated with Nexium for GERD, gastritis; had right knee pain; lower back pain; anxiety; and had been exposed to an improvised explosive device blast for which the health care provider recommended the applicant be seen by audiology. The applicant was referred to the VA for further evaluation. 5. The applicant's record contains a DD Form 2808 (Report of Medical Examination), dated 20 January 2010. Item 75b (Physical Profile) contains a Military Physical Profile Serial System rating of "111111." In block 74a (Examinee/Applicant) the examining physician indicated the applicant was qualified for service. The applicant was referred for a radiological examination of his back, legs, and chest. 6. On 16 February 2010, his unit commander notified the applicant of initiation of separation action under the provisions of chapter 13, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), by reason of unsatisfactory performance for failing more than two consecutive APFTs with a general, under honorable conditions discharge. It was further noted the applicant had been counseled from November 2007 through December 2009, was sent to the unit's Special Fitness Program, and through his subsequent behavior demonstrated a lack of acceptance of rehabilitative measures. 7. On 16 February 2010, the applicant was advised of his rights, waived legal counsel, and was advised of the impact of the discharge action. He did not submit a statement in his own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. 8. On 16 March 2010, the separation authority waived further rehabilitation and directed the applicant be discharged with a general, under honorable conditions discharge. The applicant was not transferred to the U.S. Army Reserve Control Group. 9. On 24 March 2010, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for unsatisfactory performance after completing 3 years, 2 months, and 7 days of creditable active service with no lost time. 10. On 11 April 2012, the applicant requested the Army Discharge Review Board (ADRB) upgrade his discharge to honorable and change the narrative reason of his discharge from unsatisfactory performance to physical standards or physical disability. 11. On 1 August 2012, the ADRB, after carefully examining the applicant's record of service during the period of enlistment under review, determined the characterization of service was too harsh and as a result inequitable. Accordingly, the ADRB voted to grant relief in the form of an upgrade of the characterization of his service to fully honorable. Furthermore, regulations currently in effect provide the reason for the applicant's discharge as physical standards. Accordingly, the Board voted to change the narrative reason for his separation on his DD Form 214 to "Physical Standards" with a corresponding separation designator code of "JFT." 12. The applicant provides a copy of his service and post-service medical records, VA rating decisions, and miscellaneous correspondence; however, there is insufficient evidence in the available service record which shows he sustained a disabling medical condition or was issued a permanent physical profile. 13. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES 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. It provides for MEBs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. This regulation also states the following: a. Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-2b(2) states that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his continued performance of duty creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 3-2b(2)(a) and 3-2b(2)(b) state that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 14. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military; this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 15. 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 at less than 30 percent. 16. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher 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 awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for correction of his record to show he was determined to be unfit by the PDES and retired by reason of physical disability has been carefully considered. 2. The purpose of the PDES is to maintain an effective and fit military organization with the maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of a service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the Army and the Soldier are protected. 3. As such, a Soldier who suffers an injury or an illness while on active duty is retained in the service until he or she has attained maximum hospital benefits and completion of a disability evaluation if otherwise eligible for referral into the disability system. Medical officials are responsible for counseling Soldiers concerning their rights and privileges at each step in the disability evaluation process beginning with the decision of the treating physician to refer the Soldier to an MEB and until final disposition is accomplished. 4. There is insufficient evidence in the available records and the applicant did not provide sufficient evidence to show he was ever determined to have a medical condition which was of such severity that it would have warranted his entry into the PDES. As part of his administrative separation the evidence of record shows the applicant was psychiatrically cleared, an examining physician indicated the applicant was qualified for service, and the applicant acknowledged that he did not have any conditions which currently limited his ability to work in his primary military specialty or required geographic or assignment limitations. 5. The applicant and counsel now believe he should have received a medical discharge or medical retirement for his various medical conditions due to being granted a VA disability rating for his service-connected conditions. However, an award of a rating by another agency, such as the VA, does not establish error on the part of the Army. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical fitness for military service. The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability. 6. The PDES provides that 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 a physical disability present with the requirements of the duties the Soldier may be reasonably expected to perform based on the Soldiers office, grade, rank, or rating. 7. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES. The applicant appears to have been physically or medically fit at the time of his discharge from active duty in March 2010 as shown by his separation physical and mental health evaluation performed in January 2010. In view of the foregoing, there is insufficient evidence to grant the requested relief. The applicant has not shown error, injustice, or inequity for the relief he requests. 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) AR20130003387 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130003387 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1