IN THE CASE OF: BOARD DATE: 15 September 2015 DOCKET NUMBER: AR20150007698 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 he be medically retired. 2. The applicant states: a. His medical board did not include all of his military injuries or disabilities. b. He requested that the rest of his issues be included in his medical board but was told that his mental condition was the only thing being evaluated. c. He has been diagnosed with major depressive disorder, tendon inflammation, asthma bronchial, lumbosacral or cervical strain, migraine headaches, tinnitus, irritable colon, bicep tendonitis, right shoulder condition and sleep apnea. All of these conditions were diagnosed while in service. Some of them even have line of duty paperwork with them. He is not sure why his medical board did not include all of his issues. d. The Department of Veterans Affairs (VA) currently rates his disabilities at 90 percent for all his conditions. e. He is asking the ABCMR to overturn the decision of severance pay at 20 percent and to be medically retired. 3. The applicant provides a self-authored letter dated 13 July 2015. 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. On 16 August 2002, he enlisted in the Indiana Army National Guard (INARNG). After initial training, he was awarded primary military occupational (MOS) specialty 92Y (Unit Supply Specialist) and secondary MOS 11B (Infantryman). 3. On 9 October 2009, he received orders for active duty special work (ADSW) and was assigned to Headquarters and Headquarters Company (HHC), 113th Brigade Support Battalion. 4. On 31 March 2010, he was honorably released from ADSW at the completion of his required service and returned to the INARNG. 5. On 10 May 2012, the applicant had a formal Physical Evaluation Board (PEB) and was represented by counsel. At the hearing, he requested (telephonically) for the PEB to find him unfit due to a mood disorder with a disability percentage of 30 percent. He testified that his condition existed prior to service and was further aggravated by his military service. His military experience included tours in Bosnia and Iraq with combat experience during both deployments. 6. On 10 May 2012, the PEB found the applicant physically unfit due to his mood disorder and recommended a combined rating of 20 percent. 7. On 23 May 2012, the applicant concurred with the PEB’s findings and he did not appeal. 8. On 7 June 2012, the Department of the Army Order D159-20 authorized the applicant’s separation with severance pay. 9. On 22 July 2012, the applicant was honorably discharged from the INARNG due to being medically unfit for retention. He completed 9 years, 11 months, and 7 days of net service this period in the INARNG. 10. On 11 June 2015, an advisory opinion was obtained from the U.S. Army Physical Disability Agency. They recommended denying his request. The advisory official stated: a. The applicant’s medical evaluation board (MEB) listed his condition of mood disorder as not meeting medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. The MEB listed low back pain, right shoulder pain, right knee pain, left hand pain, headaches, insomnia, asthma, hearing loss with tinnitus, and gastro-esophageal reflux disease as meeting medical retention standards. b. The only condition meriting a finding of unfitting was the applicant’s mood disorder. c. On 28 November 2011, the applicant concurred with the MEB’s findings and offered no appeal or rebuttal. d. On 10 May 2012, a formal PEB found the applicant unfit for his mood disorder and rated him at 20 percent (10 percent deduction based on his pre-existing condition). He was separated with severance pay. e. On 23 May 2012, he concurred with the PEB’s findings and offered no rebuttal or appeal. f. The MEB listed all the conditions discoverable at the time of his MEB/PEB. The fact that most were found to meet medical retention standards does not indicate that the conditions were not included on the MEB or that the PEB did not consider them. It only means that the MEB found those conditions were not so severe in 2011/2012 that they materially interfered with the performance of the applicant’s military duties in accordance with the criteria found in Army Regulation 40-501, chapter 3. g. The VA will rate all discoverable conditions that meet the criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD); unfitness for military duty is not a criterion. The PEB can only compensate for conditions that are found unfitting under the standards found in the Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). Accordingly, they were properly listed and considered by the MEB notwithstanding claims to the contrary by the applicant. 11. On 15 June 2015, the applicant was provided a copy of the advisory opinion for an opportunity to respond. However, he failed to do so. 12. National Guard Regulation 600-200 (Enlisted Personnel Management) prescribes the criteria, policies, processes, procedures and responsibilities to separate from the Army National Guard (ARNG) and Army National Guard of the United States (ARNGUS) enlisted Soldiers. Paragraph 6-35l (8) provides for discharge by reason of the Soldier being medically unfit for retention per Army Regulation 40-501. 13. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention and related policies and procedures. 14. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (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. Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following LOD criteria to be eligible to receive retirement and severance pay benefits: a. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. b. The disability must not have resulted from the Soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. DISCUSSION AND CONCLUSIONS: 1. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The applicant was properly processed through PDES and received an MEB/PEB for all of his medical conditions. 2. However, the PEB determined that his only unfitting condition was a mood disorder. The Army found the applicant unfit for continued service based on this condition. The applicant concurred with the findings and did not appeal the decision of the MEB/PEB. Therefore, he was honorably separated with a disability rating of 20 percent and received severance pay. 3. Based on the applicant's PEB and the advisory opinion from the Army Physical Disability Agency, all medical conditions were considered; however, he had only one unfitting condition. 4. Although the VA issued a rating of 90 percent, the rating is based on both fitting and unfitting conditions. As such, his VA rating is not evidence of error in the Army's determination that he had one unfitting condition. Therefore, there is no basis for granting the requested relief. 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) AR20100030401 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007698 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1