DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 18 July 2016 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings AR20150005978 1. Reference the attached Army Board for Correction of Military Records of Proceedings, dated 14 June 2016, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by affording him the opportunity to process through the Integrated Disability Evaluation System (IDES) to determine if he should have been retired or discharged by reason of physical disability. a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 24 November 2016. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150005978 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ __x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150005978 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. BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150005978 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 records to show he was medically retired due to physical disabilities that were incurred while in combat. He also requests a personal appearance before the Board. 2. The applicant states, in effect: * while serving as a member of the Massachusetts Army National Guard (MAARNG), he deployed to the Balkans in support of a North Atlantic Treaty Organization peacekeeping mission and upon his return he was transferred to the New Jersey Army National Guard (NJARNG) * within months of his return from the Balkans, he was deployed to Iraq with the NJARNG * in Iraq his team was assigned to collect, debrief, and recruit insurgents for the purpose of gathering time-sensitive information * this mission led to many success stories where insurgent attacks were disrupted * while in Iraq, he was injured three times; he was slated to be medically evacuated to the Landstuhl Regional Medical Center in Germany, but he got his commander's permission to delay his departure because he felt the mission was too vital * when he redeployed to the United States his injuries were identified and he was placed in a position where he had to fight to have his injuries addressed * were it not for the empathy of a colonel (COL) who advocated on his behalf, he would have been sent home * because of the COL's intervention, he was assigned to a Warrior Transition Unit (WTU) at Fort Dix, NJ; he was later moved to a Community-Based WTU (CBWTU) in Concord, MA * after 2 years and two surgeries, the CBWTU determined he should be medically retired; despite his initial reluctance, he readied himself to go before a medical evaluation board (MEB) * his CBWTU case manager informed him that his case would be reviewed by an MEB and he would receive a disability rating at the end of his treatment; by accepting the Department of Defense medical retirement, the local union, of which he was a member, would honor this decision and clear the way for him to receive a job-related pension * as he finished his final phase of therapy, a decision was made to release him from active duty (REFRAD) and return him to the NJARNG with no compensation or medical coverage * this news came as a great shock, and he had no opportunity to appeal this decision * he learned later the CBWTU was under pressure to move out as many Soldiers as possible, regardless of status * the REFRAD decision forced him to rearrange his life and return to his civilian occupation as a bricklayer; it quickly became apparent he was unable to deal with the physical demands of his job as a result of his service-connected injuries * to further his dilemma, no National Guard unit would accept him because of his injuries, despite being labeled "fit for duty, with limitations" * he was, in effect, stripped of his right to finish the last 6 years of service needed to be retirement-eligible * he served two tours with pride and honor; he tried to return to his former line of work, but his physical limitations, sustained while in combat, made that impossible * he had no healthcare coverage to address his medical conditions; he was forced to deplete his savings all because of poor communications within his chain of command * he would like to know who, in this massive bureaucracy, decided his injuries no longer required treatment, and determined, in effect, to end his military career * he has been told he should stop his efforts to be granted relief, but he essentially does not want to be among those who have resigned themselves to remain lost and invisible within the system 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 October 2011 * Orders 242-1135, dated 29 August 2008 * Orders Number 158-0012, dated 7 June 2011 * two memoranda, dated 12 May 2011 and 19 May 2011, Subject: Request Early Release from Active Duty * two letters from the Department of Veterans Affairs (VA), dated 22 December 2014 and 7 March 2015, respectively * Standard Form 180 (Request Pertaining to Military Records), signed on 19 March 2014 * 38 pages of civilian medical records * 948 pages of military medical and dental records * compact disk that contains records that were also provided in a hard copy 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 provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case 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 insufficient bases to waive the statute of limitations for timely filing. 2. After having prior enlisted service in the MAARNG, the applicant enlisted in the NJARNG on 9 June 2008. 3. He was ordered to active duty in support of Operation Iraqi Freedom on 26 July 2008. He was deployed to Iraq from 5 September 2008 to 25 May 2009. 4. Orders Number A-07-920193, dated 21 July 2009, issued by the U.S. Army Human Resources Command (HRC) directed the applicant be retained on active duty to participate in the Reserve Component (RC) Warriors in Transition Medical Retention Processing Program for completion of medical care and treatment. This order was amended by Orders Number A-07-920193A01, dated 29 March 2010, to change the end date to 14 September 2009. 5. Orders Number A-09-924622, dated 3 September 2009, issued by Headquarters, U.S. Army Medical Command, directed the applicant be retained on active duty effective 15 September 2009. The purpose was to participate in the RC Medical Hold Transfer to a CBWTU to complete medical care and treatment. 6. Orders Number 158-0012, dated 7 June 2011, issued by Headquarters, Army Support Activity, directed the applicant's REFRAD and return to the NJARNG, effective 5 October 2011. These orders show he was released from active duty, not by reason of physical disability. 7. His DD Form 214 shows he was honorably REFRAD on 5 October 2011. Item 18 (Remarks) shows he served in Kosovo from 1 June 2006 to 12 January 2008 and in Iraq from 5 September 2008 to 25 May 2009. Item 28 (Narrative Reason for Separation) shows "COMPLETION OF REQUIRED ACTIVE SERVICE." 8. A Staff MEB Physician, representing the Office of The Surgeon General (OTSG), provided an advisory opinion, dated 20 January 2016. The advisory stated: a. Task: (1) The Army Review Boards Agency (ARBA) requested an advisory opinion to determine if the applicant should have been placed on the Permanent Disability Retired List (PDRL) as opposed to being separated from active duty with an honorable discharge. The writer incidentally noted the applicant was REFRAD. (2) Although the letter from ARBA asked for a determination as to placement on the PDRL, it did not list any specific illness. (3) There was a 2 page undated letter from the applicant noting what he considered to be substandard care and follow-up for unspecified and unnamed conditions he alleged were incurred during his deployment. (4) In the absence of specific diseases listed in these documents, the writer referred to the Compensation and Pension (C&P) examinations [conducted by the VA] between August and October 2011. These examinations evaluated left shoulder and right ankle concerns, high blood pressure, "chronic gastric acid," and "depleted respiratory level." b. Background: (1) The applicant, in an undated, generic memorandum that was provided with his application, voiced concerns over the improper following of administrative procedures, and that 2 years in a CBWTU was not enough, with a premature discharge from the WTU. (2) His DD Form 214 shows he had active service from 28 July 2008 to 5 October 2011 and he served in Iraq from 5 September 2008 to 25 May 2009. (3) A memorandum, dated 12 May 2011 and signed by Lieutenant Colonel (LTC) SSS, Medical Corps, documented a physical profile PULHES score of 222111. [A physical profile is based on six body systems: "P" = physical capacity; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each factor has a numerical designation, with "1" meaning a high level of fitness; "2" standing for some activity limitations; and "3" indicating significant limitations.] (4) A profile with only one signature, signed on 16 August 2010, listed the "L" section of the PULHES as "3," but with only one signature, it lacked validity. Additionally, the profile was handwritten and copied into the record. The physician did not enter this information electronically. (5) The writer also noted the documents submitted included the VA C&P examinations from August and October 2011. c. Facts: (1) A review of the applicant's electronic medical record (Armed Forces Health Longitudinal Technology Application (AHLTA)) shows three progress notes dated between 24 October 2005 and 1 August 2008. No mention was made of any orthopedic issues. (2) A screening for cardiovascular disorders was performed and the applicant was medically cleared to deploy. (3) The writer saw indications of a pre-existing right ankle injury from 2007. (4) Plain film x-ray from 3 January 2007 showed a pre-existing history of bony changes. (5) An AHLTA progress note: * dated 20 March 2009, described a gradual, atraumatic recurrence of right ankle pain while in theater during 2009 * dated 12 April 2009, indicates the applicant returned from leave and stated he had received a magnetic resonance imaging (MRI) scan that showed a "ligament tear" * dated 22 April 2009 mentioned a right ankle injury while training * dated 30 May 2009, prepared shortly after the applicant's redeployment, talked about persistent right ankle concerns * post deployment forms dated 2 November 2009 discuss "swollen, stiff, or painful joints" (6) The applicant's own documentation mentions his work as a bricklayer after his REFRAD. (7) The writer also acknowledged a progress note from a VA emergency room visit where the applicant sought treatment for his right foot pain. The right foot pain was caused by calcaneal spurs (small spurs of bone in the heel), exacerbated by standing on scaffolding for long periods. (8) The writer saw no mention of left shoulder pain in the electronic medical record until 23 June 2009. * the applicant claimed "a heavy object fell on him" in a 1 July 2009 AHLTA progress note * a handwritten progress note from 15 November 2008 describes a fall injuring the left shoulder, and goes on to indicate tests were needed; it also describes some concerns about the right shoulder (Although this took place in a combat zone, both histories suggested the injuries were the direct result of combat) * progress notes after the deployment discuss left shoulder arthroscopy with debridement on 16 February 2010 (9) Profiling by Dr. (LTC) SSS also listed the "U" section as a "2." The VA C&P from 2011 showed a fair range of motion for the left shoulder, but residuals of pain. (10) The applicant's post-deployment forms, dated 2 November 2009, discussed that he had trouble breathing. The applicant worked many years as a bricklayer, and he had a family history of silicosis (lung fibrosis caused by inhaling dust particles that contain silica). Additionally, the applicant stated he lived near a burn pit while deployed in 2009. * a work-up for complaints about breathing difficulties did not begin until his 2-year stay in the CBWTU * a pulmonary consultation found no signs of pulmonary fibrosis, but a mild obstructive defect * an AHLTA progress note dated 13 July 2011 discussed the obstructive defect and mentioned a methacholine challenge test * the test results could not be located in the VA medical records * interestingly, the pulmonary consultation expressed concern about silicosis and described faint expiratory wheezes * the August 2011 VA C&P examination mentions wheezes (11) As an administrative matter, the writer observed the AHLTA progress notes prior to 1 September 2010 discussed the overall goal as REFRAD, but after 1 September 2010, the goal was referral to an MEB. d. Discussion. (1) The applicant spent 2 years (May 2009 to September 2011) in the CBWTU. During that period, he underwent extensive rehabilitation for the left shoulder and right ankle. (2) While in the CBWTU an Army medical officer evaluated him and found him fit for duty with limitations. The applicant stated, in his undated letter, that he subsequently attempted to work "with Local 3," and a VA emergency room note from 28 August 2015 describes work on a scaffold (which presumably involves significant motion of the arms, climbing, and prolonged standing). The writer noted the lack of medications listed in recent routine medical histories. (3) The applicant was medically cleared when he deployed to the theater. Although the administrative considerations may not be totally based on medical standards (the occupational history of bricklayer does open the prior medical history), Soldiers are presumed fit when they go into a theater because they have been medically cleared. e. Conclusions: (1) The writer considered high blood pressure and the "chronic gastric acid" to be irrelevant because they clearly met retention standards at the time of REFRAD. (2) Regarding the left shoulder, the writer noted the handwritten progress note and documentation of surgery while the applicant was on active duty. The applicant described lifting a heavy object while in theater. The history reflects an injury not sustained because of direct combat. (3) Although the 21 August 2015 emergency room progress note indicated the applicant worked as a manual laborer, this does not guarantee he could perform duties for military occupational specialty (MOS) 19D (Cavalry Scout). (4) Many people who can perform routine activities of daily living, and even significant exercise, cannot perform the vigorous aerobic conditioning and heavy weight lifting duties mandated, and an MOS that requires more physical exuberance. Based on this, the writer recommended the left shoulder be considered not fit for duty, and adjudicated based on the VA C&P examination performed in August and October 2011. (5) As to the right ankle, many of the arguments applicable to the shoulder also apply to the right ankle. There is a history of ankle concerns with a wide gap in service, and a history of manual labor as a bricklayer during that gap. Nonetheless, the presumption is that Soldiers who deploy are fit for duty. (6) The writer stated the right ankle condition was considered to have existed prior to service, but was exacerbated by the time served in the Army. Additionally, as with the shoulder, there was no evidence the right ankle condition was combat-related. The writer further recommended the right ankle be considered as failing retention standards, and that adjudication be based on the VA C&P examinations in August and October 2011. (7) Addressing the "depleted respiratory level," the applicant's background as a bricklayer, and his family history of silicosis was taken into account, but the writer again affirmed the presumption the applicant was medically cleared prior to deployment. Additionally, the applicant was exposed to burn pits during his deployment, and deserts are known to be a "high particulate environment." (8) Pulmonary function tests could not be located for the applicant's active duty period, and the writer recommended those tests that were done as part of the pulmonary consultation be obtained and presented to the physical evaluation board (PEB). Multiple examinations documented wheezing, and the lack of medication use was also documented in multiple places in the contemporary record. Presumably, the VA C&P examinations from August and October 2011 also used pulmonary function tests and these tests would indicate the applicant's pulmonary function around the time of his REFRAD without the further complication of subsequent exposure to dusty construction site environments. f. Recommendation: (1) The applicant should be considered for an MEB based on the above-described conditions having failed the retention standards outlined in Army Regulation 40-501 (Standards of Medical Fitness). (2) The writer respectfully non-concurs with the PULHES documented by Dr. (LTC) SSS based on the evidence and lines of thought given above. (3) He recognizes the potential for incomplete information, the need for PEB approval of his recommendations, and, should an MEB and PEB convene, the recommendations would not be binding, and could be subject to change. 9. The applicant was provided a copy of the advisory opinion. He responded by stating, in effect: a. He received the letter from the Army Review Boards Agency concerning his case. The MEB physician who wrote the advisory opinion agreed there were numerous infractions that warrant a new MEB evaluation. b. He spoke with the MEB physician via the phone and discussed the further decline of his health due to his service-connected injuries. He has current medical notes and treatment records at his home. He has also requested his medical records from the hospital where he is receiving treatment and he can provide them. c. He asked if there was anything he could do to expedite the process, and remarked that he has waited a long time to have his concerns addressed. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 states 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. b. Chapter 4 provides guidance on referring Soldiers for evaluation by an MEB when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. 2. Army Regulation 40-501 provides medical retention standards and is used by MEBs to determine which medical conditions will be referred to a PEB. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40. The PEB will make the determination of fitness or unfitness. 3. Department of Defense Manual 1332.18, Volume 2, prescribes policies and procedures for the processing of Soldiers with duty-related disabling medical conditions. a. The Integrated Disability Evaluation System (IDES) is a joint Department of Defense and VA process by which it is determined if Soldiers who have been wounded, ill, or injured are fit for continued military service. b. In consultation with the Soldier's commander and on approval by the MEB convening authority, a military medical provider refers a Soldier with disabling medical conditions to IDES. (1) The VA provides the medical examinations (identified as C&P examinations) of the disabling conditions. Then, based on the VA's medical examinations, an MEB makes an assessment to identify those medical conditions that fail to meet medical retention standards. All conditions failing retention standards are referred to a PEB for a fitness determination. (2) Conditions found by the PEB to be unfitting are sent to the VA for a disability rating. In determining the rating(s) to be assigned, the VA uses the VA Schedule for Rating Disabilities (VASRD). Each rated disability is assigned a code by VA in accordance with the schedule of ratings within the VASRD. (3) Upon receipt of the disability rating(s) from the VA, the results are finalized and the disposition can include the Soldier being returned to duty or separated (either with severance pay, if the total disability rating is 20 percent or less, or retired, for those cases where the disability rating is 30 percent or higher). 4. Army Regulation 15-185 (ABCMR) prescribes policies and procedures for the ABCMR. It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it. The ABCMR may, in its discretion, hold a hearing or request additional supporting documentation or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 5. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. DISCUSSION: 1. By regulation an applicant is not entitled to a hearing before the Board. The Director of the ABCMR, or a panel of the Board, can authorize a personal appearance. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. 2. An official representing OTSG reviewed the available documentation in the applicant's case. a. Based on this review, this official noted a Dr. (LTC) SSS had provided the applicant a physical profile showing "2" (some activity limitations) for the "P," "U," and "L" portions of the PULHES. This official affirmed he did not concur with the PULHES given by Dr. SSS, based on the available evidence. b. It was concluded the evidence showed it was reasonable to presume the applicant's medical conditions associated with his left shoulder, right knee, and his respiratory system, failed medical retention standards at the time of discharge. c. Given the above-noted findings and recommendations, the evidence in this case supports referring the applicant into the IDES to determine whether he should have been separated due to physical disability. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005978 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005978 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2