IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150008752 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 IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150008752 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 to amend the decision of the ABCMR set forth in Docket Number AR20140007123, dated 3 December 2014. ____________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. IN THE CASE OF: BOARD DATE: 17 May 2016 DOCKET NUMBER: AR20150008752 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 reconsideration of his prior request for completion of the medical evaluation board (MEB)/physical evaluation board (PEB) process and retirement due to physical disability. As new issues, he requests back pay from 24 September 2007 through 5 July 2012, consideration for promotions to staff sergeant and sergeant first class, continuation on active duty (COAD)/continuation on active Reserve (COAR) status, and award of the Army Good Conduct Medal for 3 years of service. 2. The applicant states: * he was wrongfully discharged from active duty at Fort Knox, KY, as his injuries were incurred while serving on active duty * the regulatory processes in place were not properly followed, thus he was never referred to the Army Physical Disability Evaluation System (PDES) for separation processing through medical channels despite medical conditions that required extensive treatment * he underwent a physical evaluation on 26 November 2006 which stated he was not qualified for service * he underwent a cervical discectomy on 12 April 2007 and received a physical profile which limited his physical training after his return to duty * he could not wear Kevlar protective gear or train with a weapon and was scheduled for a follow-up appointment with his surgeon in October 2007, only to be released from active duty (REFRAD) on 23 September 2007 and left to follow up with his surgeon at his own expense * the MEB was initiated but not completed prior to his REFRAD * he was advised that the Tennessee Army National Guard (ARNG) would process his MEB after his REFRAD, although his physical examination was never altered prior to his REFRAD to show he was qualified for service and he still had a physical profile * he was REFRAD in September 2007, yet his civilian surgeon never instructed military officials at Fort Knox to cancel his October 2007 appointment with him * had he undergone an MEB and PEB which found him unfit while serving on active duty, he would have requested COAD/COAR * if the COAD/COAR had been approved, he would have remained in a promotable status * while serving at Fort Knox, he remained enrolled in college and completed his bachelor of science degree in August 2008 and master's degree in business administration in 2012 in addition to several correspondence courses and an apprenticeship, all of which would count toward promotion * his line-of-duty (LOD) investigation was not processed in a timely manner or according to regulatory guidelines, as it wasn't distributed until 7 years after his REFRAD * without timely receipt of the LOD, the Tennessee ARNG processed a non-duty related discharge instead of the medical discharge they would have processed had the LOD documentation been submitted by Fort Knox 7 years earlier * these collective errors led to an injustice to him and his family and violated his rights * he was unable to return to his civilian employment after his REFRAD as a result of his service-connected injuries and received unemployment compensation which led him to file for bankruptcy * had he been medically retired or allowed to remain on active duty until he was fully evaluated and given the opportunity to be rehabilitated while serving on active duty, his civilian employment pathway would have been different * he reenlisted in the Tennessee ARNG for 6 years prior to participating in the Reserve Component Medical Retention Processing Program at Fort Knox * the expiration of his contract was 5 July 2012 * he requests voidance of his ARNG discharge, back pay through his contract expiration date of 5 July 2012, reinstatement of his Montgomery GI Bill benefits, MEB/PEB consideration, and promotion to staff sergeant and sergeant first class 3. The applicant provides: * 14-page self-authored statement, including background, list of injuries, description of medical records, questions, and requested action * a compact disc containing over 250 pages of Armed Forces Health Longitudinal Technology Application (AHLTA) electronic medical records covering the period 1 January 2006 through 31 December 2007 * additional hard copy medical records exceeding 50 pages * three DD Forms 214 (Certificate of Release or Discharge from Active Duty) * National Guard Bureau Form 22 (Report of Separation and Record of Service) * nine orders, to include mobilization, REFRAD, medical retention, and reassignment * educational certificates to include Certificate of Completion of Apprenticeship for Personnel Systems Management, Bachelor of Science in Human Resource Leadership, and Master of Business Administration * 5-page history of his military training * Internal Revenue Service Wage and Income Transcript for tax period December 2007 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140007123 on 3 December 2014. 2. After prior periods of service in the U.S. Marine Corps, ARNG, Air Force National Guard, U.S. Army Reserve, and Regular Army, the applicant enlisted in the Tennessee ARNG on 6 July 2005 and he was assigned to the 568th Personnel Services Detachment. 3. Joint Force Headquarters, Tennessee National Guard, Orders 346-036, dated 12 December 2005, ordered him to report to the mobilization station at Camp Atterbury, IN, on 7 January 2006 for active duty in support of Operation Enduring Freedom. 4. He provided a DA Form 3349 (Physical Profile), dated 12 January 2006, issued at Camp Atterbury showing: * he was issued a permanent physical profile ratings of 2 in the physical capacity or stamina, upper extremities, and lower extremities factors for a left wrist ganglion cyst (lump in hand or wrist), shaving bumps, and bilateral femoral patella syndrome (pain in the front of the knee) * he did not require an MEB/PEB * the comments regarding his functional limitations advised him to shave every other day with shaving powder 5. He provided a cover sheet signed by the Camp Atterbury Mobilization Site Medical Director, dated 8 November 2006, admitting him to a medical holding unit. His diagnosis was listed as severe degenerative joint disease of the knees, hands, and back with chronic severe pain and a physical profile rating of 3. The form states he needed MEB/PEB and pain management. 6. Camp Atterbury Orders 312-003, dated 8 November 2006, released him from assignment to the 568th Personnel Services Detachment, Tennessee ARNG, and attached him Company M, Garrison, Fort Knox, to complete medical treatment. 7. As part of his inprocessing with Company M, Garrison, Fort Knox, he underwent a medical examination at the Margetis Medical Clinic, Fort Knox. His DD Form 2808 (Report of Medical Examination), dated 29 November 2006, shows: * the box indicating he was not qualified for service was marked with an "X" and the doctor's hand-written remark next to it stating "currently" * he had a physical profile rating of 3 for his upper and lower extremities (neither permanent nor temporary profile was indicated) * the summary of defects and diagnoses listed nine items – * item 1 – complaints of chronic multiple joint pain, especially neck – diagnosed with degenerative arthritis – patient currently seeing physical and occupational therapy – pending orthopedic consult – magnetic resonance imaging ordered * item 2 – acute pharyngitis (inflammation of the pharynx or tonsils caused by bacterial or viral infection) – medication prescribed * item 3 – complaints of nasal congestion/chronic – suspect allergic rhinitis (inflammation of mucous membrane) – prescribed medication * item 4 – hypertension – continue current medication * item 5 – routine basal cell hyperplasia screening pending – zero issues * item 6 – routine blood work – lipid panel (measure of cholesterol levels) and PSA (test for prostate cancer) * item 7 – mildly elevated alanine and aspartate transaminase (liver enzymes) – recommend no Tylenol products – repeat liver function tests (used to detect liver inflammation and damage) ordered – patient asymptomatic * item 8 – recheck glucose – fasting glucose ordered * item 9 – pes planus (flatfoot) – podiatry consultation for customized orthotics 8. U.S. Army Human Resources Command Orders A-12-629569, dated 4 December 2006, retained him on active duty to voluntarily participate in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment. The additional instructions stated, in part: IAW [IN ACCORDANCE WITH] DOD [DEPARTMENT OF DEFENSE] INSTRUCTION 1332.38, SM [SERVICE MEMBER] WILL BE ENTERED INTO PHYSICAL DISABILITY EVALUATION SYSTEM FOR DISABILITY PROCESSING AT THE EARLIEST DETERMINATION OR SM UNABLE TO RETURN TO FULL MIL [MILITARY] DUTY WITHIN ONE YEAR OF DIAGNOSIS OF MEDICAL CONDITION. EARLY SEPARATION/ REFRAD IS REQUIRED UPON COMPLETION OF MEDICAL CARE AND TREATMENT OR FOR SEPARATION BY REASON OF PHYSICAL DISABILITY. 9. A DA Form 3349, dated 16 January 2007, shows: * he was issued a temporary physical profile rating of 3 for neck pain * his physical profile expiration date was 17 February 2007 * he did not require a permanent physical profile and did not require an MEB/PEB 10. A document from the Neurosurgical Institute of Kentucky, dated 11 April 2007, states he was admitted to Norton Hospital on 11 April 2007. He underwent an anterior cervical discectomy and fusion (surgery to remove a herniated or degenerative disc in the neck area of the spine) at cervical vertebrae 4-5 (C4-C5). This was followed by placement of a cervical plate. He tolerated the procedure well and would be ready for discharge from the hospital within the next day or so. 11. A DA Form 3349, dated 23 July 2007, shows: * he was issued a temporary physical profile rating of 3 for postoperative cervical surgery he underwent on 12 April 2007 – his injuries were listed as lumbar, bilateral knee, elbow, and wrist pain * his physical profile expiration date was 23 October 2007 * he did not require a permanent physical profile and did not require an MEB/PEB 12. A document from the Neurosurgical Institute of Kentucky, dated 12 June 2007, states he was given permission to return to light duty work with no charge of quarters duty and no physical training or long periods of sitting or standing. He would require a reconstructed image of the sagittal plane (an anatomical plane which divides the body into right and left halves) and coronal plane (an anatomical plane which divides the body into front and back halves) using a fine cut computed tomography (method of producing a three-dimensional image of the internal structures) scan in October 2007 to assess the status of his fusion 6 months postoperatively. 13. The applicant provided numerous pages from his medical records between 18 June 2007 and 11 September 2007 wherein he highlighted specific notes deemed to be pertinent, including: a. 18 June 2007 comments, as translated: Here for physical profile update for chronic neck pain (C4-C5 fusion on 12 April 2007); lower back, bilateral knee, elbow, and wrist pain. Awaiting word on Community Based Health Care Organization, REFRAD, or board. Receiving no physical therapy; reports numbness under chin; reports taking blood pressure medication but had not taken it that morning; reports no signs or symptoms of chest pain, dizziness or heart attack; may need 5-day blood pressure screen. b. 21 June 2007 comments, as translated: Treatment plan pending notes from civilian neurosurgeon from 12 June 2007. Called Healthnet representative for notes; patient seen on 19 June 2007 c. 28 June 2007 comments, as translated: Service member to see primary care manager next week for fit for duty evaluation; service member seen in the office on 25 June 2007. d. 6 July 2007 comments, as translated: Here for evaluation of neck and to discuss possible REFRAD. Service member states he is ready to leave active duty, just concerned about follow-up appointment for his neck in October. He states he is a civil servant in his civilian job and doesn't foresee any problems with physical activity. He does voice some concern regarding continued knee pain and weakness; he states he doesn't feel as though his knees have been fully evaluated. Will start working toward REFRAD process with a physical profile for cervicalgia (neck pain that occurs toward the rear or side of the cervical vertebrae). Discussed REFRAD and return to duty with a physical profile. e. 23 July 2007 comments, as translated: Musculoskeletal systems: soft tissue swelling of the right knee; knee joint pain on the right, on the left, worse with weight bearing, and worse in the morning; knee joint swelling on the right. No knee redness. The knee joint feels unstable on the right and a popping sound was heard in both knees. f. 22 August 2007 comments, as translated: Patient attached to Warrior Transition Unit (WTU); here today for further documentation of multiple issues; current medications listed. The primary issue for the WTU is cervicalgia; received C4-C5 discectomy at Neurosurgical Institute of Kentucky in Louisville on 12 April 2007. Patient plans for REFRAD with physical profile and use Transitional Assistance Management Program (transitional TRICARE coverage to eligible Soldiers separating from active duty) and Department of Veterans Affairs (VA) benefits. He plans to follow up with the Tennessee National Guard for possible MEB and still plans on routine follow-up with Dr. S____ at the Neurosurgical Institute of Kentucky in October 2007 (2 1/2-hour drive). Patient has copies of all of his civilian medical records (to include those with Dr. S____). Patient states that a "final determination" will be made by Dr. S____ in October 2007 to determine future use of individual body armor, Kevlar, etc. Documented conditions and concerns as per the patient are: chronic bilateral ankle/feet pain/swelling, left fourth digit finger knuckle stiffness/deformity from injury sustained in Afghanistan; "involuntary" deep breaths intermittently while sleeping, sitting, or lying supine; bilateral cubital tunnel syndrome(condition involving pressure of the ulnar nerve commonly known as the "funny bone" causing tingling and numbness); chronic indigestion; numbness under chin and upper mid-chest secondary to surgery on 12 April 2007; nick stiffness (better since surgery, but persistent); "HTN"; persistent dry throat after spinal surgery; claustrophobia and low back pain after wearing load bearing equipment; intermittent headaches from occipital to frontal region (usually associated with claustrophobia; previous diagnosis of tension headaches; patient believes he has migraines with noted photosensitivity). Patient has been on medical holdover/WTU since November 2006. No acute changes in listed conditions. g. 6 September 2007, 7 September 2007, and 11 September 2007 comments show he maintained a physical rating of 3 for his ailments, albeit not a permanent physical profile. 14. A letter from the Neurosurgical Institute of Kentucky to the applicant, dated 29 August 2007, clarified points of discussion from his last appointment with Dr. S____ on 12 June 2007. It states he was unable to perform the minimum common tasks of wearing a ballistic helmet, load-bearing equipment, and a protective mask. He was diagnosed with cubital tunnel syndrome which was not yet cured and he was unable to fire a weapon as part of training. He was treated for cervical arthritis. He was unable to perform sit-ups, push-ups, or alternate forms of physical training. 15. Headquarters, U.S. Army Armor Center and Fort Knox, Orders 262-0159, dated 19 September 2007, released him from active duty, not by reason of physical disability, and reassigned him to the 568th Personnel Services Detachment, Nashville, TN, effective 23 September 2007. 16. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty on 23 September 2007 by reason of completion of required active service. 17. The applicant provided a copy of a Tennessee ARNG Redeployment Checklist, dated 17 October 2007. Section V (Medical Readiness Requirements) shows: * Any unresolved medical issues? NO GO – yes, undergoing treatment * LOD required? GO – dated January 2005 * Any current profiles? NO GO – temporary, undergoing treatment, needs permanent * Medical/dental files on hand? GO * Annual Medical Certificate completed for current fiscal year? GO 18. He provided a self-authored letter, dated 1 March 2008, regarding a Fitness for Duty Evaluation Checklist. He states he was notified by his surgeon, Dr. C____ S____, and his attending physician, Dr. R____ A____, that he has restrictions which will prevent him from performing his military occupational specialty. He stated he believed his duty performance was inhibited as a result of his service-connected injuries. If the fitness-for-duty evaluation concurred with the findings of both of his doctors, he requested to medically retire as he had over 15 years of service. 19. A DA Form 3349, dated 5 April 2008, issued by the Tennessee ARNG Medical Command shows: * he was issued a permanent physical profile rating of 3 for carpal/cubital tunnel syndrome, cervical disc herniation, headaches, knee pain, temporomandibular joint disorder (dysfunction of hinge connecting upper and lower jaw), and post-traumatic stress disorder * his physical profile did not have an expiration date * he required an MEB/PEB 20. A Joint Force Headquarters, Tennessee National Guard, form, dated 5 April 2008, subject: State Fitness for Duty Evaluation Findings, shows: a. He was diagnosed with carpal tunnel syndrome, migraine headaches, post-traumatic stress disorder, temporomandibular joint disorder, chondromalacia of left knee, and cervical arthritis. b. The findings and recommendations were not fit for duty per Army Regulation 40-501 (Physical Evaluation for Retention, Retirement, or Separation) paragraphs 3-41e(1) and (2), MEB with a permanent physical profile. c. The document was signed by the State Surgeon and the President of the State Medical Review Board (SMRB). 21. Joint Force Headquarters, Tennessee National Guard, memorandum, subject: SMRB Fitness for Duty Evaluation Findings, dated 8 April 2008, states: a. the SMRB determined he failed to meet medical retention standards for continued service in the Tennessee ARNG; b. the basis for the finding is Army Regulation 40-501, paragraphs  3-41e(1) and (2), as he presented documentation of conditions that interfered with the satisfactory performance of his military duties; c. he was advised of the SMRB's unanimous recommendation for involuntary separation and that The Adjutant General is the separation authority for service members with medical conditions sufficient to definitely interfere with performance of military duty; d. service members with 15 or more years of qualifying service are responsible for immediately contacting their unit of assignment to determine possible eligibility for retirement benefits upon reaching age 60 e. Soldiers failing to meet the medical retention standards for duty by any authority will not perform any type of duty or training prior to discharge; and f. he was advised of is right to appeal this decision within 30 days from receipt of the letter by submitting a written request for referral to a non-duty related PEB to the Deputy State Surgeon's Office for a determination of fitness. 22. On 28 April 2008, Joint Forces Headquarters Tennessee ARNG issued his notification of eligibility for retired pay at age 60 (Selected Reserve 15-year letter), indicating he completed at least 15 years of qualifying service beginning on or after 1 October 1991 and he requested transfer to the Retired Reserve. 23. Joint Force Headquarters, Tennessee National Guard, Orders 126-811, dated 5 May 2008, honorably discharged him from the ARNG and reassigned him to the Retired Reserve effective 8 April 2008 under the authority of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-36o. Records indicate he held the rank of sergeant at the time of his transfer to the Retired Reserve. 24. Joint Forces Headquarters, Tennessee National Guard, letter, dated 10 September 2013, responds to the applicant's request for assistance regarding his discharge from the Tennessee ARNG. It advises that after a review of all available documents, it determined that he was accurately discharged from the Tennessee ARNG subsequent to an SMRB in which he was found unfit in April 2008. He was advised by letter that he had 30 days in which to appeal the findings of the board. After no rebuttal on his part after 30 days, he was discharged per orders, dated 5 May 2008, with an effective date of 8 April 2008. 25. A Department of Veterans Affairs (VA) statement verifying his service-connected disabilities, dated 17 October 2013 shows his service-connected disabilities were given a combined rating of 100 percent as follows: * anxiety disorder (not otherwise specified) with depression (not otherwise specified) – 70 percent * tension headaches – 30 percent * temporomandibular joint disorder – 30 percent * degenerative changes of the cervical spine at C4-C5 – 20 percent * degenerative disc disease of the thoracic spine – 20 percent * sciatica of the right lower extremity – 10 percent * sciatica of the left lower extremity – 10 percent * right hand arthritis involving the metacarpophalangeal and carpal metacarpal joints – 10 percent * cervical radiculopathy of the left upper extremity – 10 percent * cervical radiculopathy of the right upper extremity – 10 percent * osteoarthritis of the left first carpo-metacarpal joint – 10 percent * patellofemoral syndrome of the right knee – 10 percent * patellofemoral syndrome of the left knee – 10 percent 26. Joint Force Headquarters memorandum for record, subject: Response to Inquiry from Mr. G____ T____ P____'s request for Referral to MEB, dated 26 June 2014 and signed by the Deputy State Surgeon of Administration states: * on 1 March 2008, the applicant submitted a letter in response to the requirements of the SMRB checklist which was previously called the Fitness for Duty Evaluation Board * in his letter he wrote he was not at military standard, had over 15 years of service, and requested to medically retire * he was subsequently found unfit by the SMRB per Army Regulation  40-501, paragraphs 3-41e(1) and (2) for miscellaneous conditions and defects * the SMRB findings were based on consideration of the multitude of conditions that were not singly found to be unfitting, but together, as a whole, were deemed to cause the applicant to be unfit for service * no LOD investigation was submitted to the SMRB for the medical issues evaluated * without an LOD for an unfitting medical condition, he was ineligible for MEB processing * he could request an LOD through the ABCMR * he was awarded a combined disability rating of 100-percent by the VA for his service-connected disabilities * Tennessee ARNG Orders 126-811 assigned him a medical loss code ensuring he would be eligible for retirement with over 15 but less than 20 years of service * he was advised of his responsibility to submit a written appeal of the SMRB findings to a non-duty PEB, should he disagree * he did not appeal the SMRB decision * his 15-year retirement letter, dated 28 April 2008, rendered him eligible to apply for retired pay upon attaining age 60 * in review, he received the medical discharge he requested in 2008 and did not submit an appeal disputing the SMRB decision to discharge him * he is receiving 100-percent disability compensation from the VA and is eligible to request retired pay at age 60 * he may make a request of the ABCMR for an LOD determination 27. An advisory opinion was obtained from the National Guard Bureau on 16 July 2014. The advisory opinion concurs with and reiterates the above statements from the Tennessee ARNG. The National Guard Bureau Retirement Services Section was consulted and concurs with the recommendation of disapproval for a request for an LOD investigation and processing of his medical conditions by an MEB and PEB. The applicant is already medically retired and has a 100-percent VA disability rating, thus he would not receive anything additional from an MEB and PEB at this juncture. 28. Headquarters, Warrior Transition Battalion, memorandum, dated 13 January 2015, subject: Informal LOD Investigations – (Applicant), for Cervical Spinal Stenosis, Cervical Radiculopathy, dated 12 April 2007, shows an informal LOD investigation, documented on a DA Form 2173 (Statement of Medical Examination and Duty Status), also dated 13 January 2015, determined the applicant's surgery for cervical spinal stenosis and cervical radiculopathy at Norton Hospital on 12 April 2007 was in the LOD. REFERENCES: 1. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred into the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB * receive a permanent physical profile rating of 3 or 4 and are referred by a Military Occupational Specialty Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, HRC c. The PDES assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. d. The mere presence of 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 physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 2. Army Regulation 635-40 establishes the Army 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 or her office, grade, rank, or rating. 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. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty 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. c. Chapter 6 (COAD and COAR Status of Unfit Soldiers) prescribes the criteria and procedures under which Soldiers who have been determined unfit by the PDES may be COAD or COAR as an exception to policy. The primary objective of this program is to conserve manpower by effective use of needed skills or experience. A Soldier who is physically unqualified for further military service has no inherent or vested right to continuation. COAR applies to Active Guard Reserve Soldiers requesting to continue as members of the Individual Ready Reserve or as troop program unit members, full-time National Guard Soldiers requesting to continue as traditional drilling unit members, ARNG unit members, U.S. Army Reserve troop program unit members, Individual Ready Reserve members and individual mobilization augmentees. Soldiers in these categories determined to be unfit while mobilized may only request continuation in their pre-mobilization status or in the Individual Ready Reserve. They are not eligible for COAD or otherwise being assessed onto the Active Duty List as a COAD. 3. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD). a. Chapter 3 provides standards for medical retention. It lists the conditions that result in interference with satisfactory performance of duty as substantiated by the individual's commander as causes for referral to an MEB. It states Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB, with the following caveats: ARNG Soldiers not on active duty whose medical condition was not incurred or aggravated during an active duty period will be processed in accordance with chapter 10 of this regulation. Paragraphs 3-41e(1) and (2) state conditions and defects not mentioned elsewhere in this chapter are causes for referral to an MEB if the conditions (individually or in combination) result in interference with satisfactory performance of duty as substantiated by the individual's commander or supervisor or the individual's health or well-being would be compromised if they were to remain in the military service. b. Chapter 10 states ARNG Soldiers who do not meet chapter 3 retention medical standards and are pending separation for injuries found in the line of duty injuries will be processed in accordance with Army Regulation 40-400 (Patient Administration), and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). Soldiers pending separation from the ARNG for failing to meet medical retention standards found not in the line of duty are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits. 4. The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 5. 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 of less than 30 percent. 6. National Guard Regulation 600-200 (Enlisted Personnel Management), chapter 8, prescribes the policies and procedures for separation of enlisted personnel by appropriate State authorities. It provides for the separation of enlisted personnel for medical unfitness for retention. Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per Army Regulation 40-501 and National Guard Regulation 40-501. Commanders who do not recommend retention will submit a request for the Soldier's discharge to the State Adjutant General. Paragraph 8-36o provides for the involuntary separation from the State ARNG of Soldiers to be discharged and transferred to the Retired Reserve. 7. Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Separations), in effect at the time, established the policies, standards, and procedures governing the administrative separation of enlisted Soldiers from the Reserve Components. Paragraph 12 provided guidance for separation of Soldiers who were medically unfit for retention. It stated discharge would be accomplished when it had been determined that a Soldier was no longer qualified for retention by reason of medical unfitness under the provisions of Army Regulation 40-501, unless the Soldier requested and was: a. granted a waiver under Army Regulation 40-501, as applicable; b. determined fit for duty under a non-duty related physical evaluation board fitness determination under the provisions of Army Regulation 635-40; or c. eligible for transfer to the Retired Reserve under the provisions of Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers). 8. Army Regulation 140-10, chapter 6 (Transfer to and from the Retired Reserve), states eligibility for transfer to the Retired Reserve is predicated upon: * entitlement to receive retired pay from the U.S. Armed Forces because of prior military service * completion of a total of 20 years of active or inactive service in the U.S. Armed Forces * medical disqualification for active duty resulting from a service-connected disability * appointment based on the condition the Soldier immediately apply for transfer to the Retired Reserve * reaching the age of 37 and completed a minimum of 8 years of qualifying Federal service * reaching the age of 37, completed a minimum of 8 years of qualifying Federal service, and served at least 6 months of active duty in time of war or national emergency * completion of 10 or more years of active Federal commissioned service * being medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed 9. Title 38, U.S. Code, sections 1110 and 1131, permit 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 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 VA does not have the 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. These two government agencies operate under different policies. 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. 10. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotions and reductions of Army enlisted personnel. Chapter 7 (Enlisted Promotion and Reduction of ARNG Personnel) provides guidance specific to the ARNG promotion system. The enlisted promotion system is designed to help fill authorized enlisted vacancies in the noncommissioned officer ranks with the best qualified Soldiers who have demonstrated the potential to serve in the next higher rank. All Soldiers must meet structured self-development and noncommissioned officer education system requirements for their current rank, minimum time in grade, time in service, and cumulative enlisted service as established in the promotion board announcement and this chapter, and are not specifically prohibited from consideration per other provisions of this chapter, are eligible for consideration. 11. Army Regulation 600-8-22 (Military Awards) provides policy, criteria, and administrative instructions concerning individual and unit military decorations, Army Good Conduct Medals, service medal, ribbons, and badges. It states the Army Good Conduct Medal is awarded for exemplary behavior, efficiency, and fidelity in active Federal military service. It is awarded to active component enlisted Soldiers, enlisted Active Guard Reserve personnel serving on extended periods of active duty (other than for training), and Reserve enlisted personnel ordered to active duty under Title 10, U.S. Code, for qualifying periods of continuous enlisted active Federal military service. Qualifying periods of service include each 3 years completed on or after 27 August 1940; for the first award only, upon termination of service on after 27 June 1950 of less than 3 years but more than 1 year; for the first award only, upon termination of service, on or after 27 June 1950 of less than 1 year when final separation was by reason of physical disability incurred in the LOD; or for the first award only, for those individuals who died before completing 1 year of active Federal military service or if the death occurred in the LOD. DISCUSSION: 1. The applicant's requests for COAD/COAR, completion of the MEB/PEB process, retirement due to physical disability, back pay, retroactive promotions, and award of the Army Good Conduct Medal were carefully considered. 2. The evidence of record shows the applicant was retained on active duty to voluntarily participate in the Reserve Component Medical Holdover Medical Retention Processing Program for the completion of medical care and treatment post-deployment. 3. He was treated for multiple injuries, to include chronic neck pain; lower back, bilateral knee, elbow, and wrist pain; and received multiple physical profiles. He underwent neck surgery which involved fusion of the C4-C5 discs on 12 April 2007 and received a recovery physical profile. 4. The evidence shows he was properly honorably REFRAD due to completion of required active service in September 2007 and returned to his Tennessee ARNG unit. Although there is abundant evidence that he was in a medical holdover status to allow him to complete medical treatment for documented injuries, his available service medical records do not contain documentation indicating he was issued a permanent physical profile with a rating of 3 or 4 while he was serving on active duty or he suffered from a medical condition that was determined to affect his ability to perform the duties required by his military occupational specialty and/or grade or rendered him unfit for military service. Prior to his REFRAD, his treating military physicians did not diagnose him with a medical condition that they felt warranted his entry into the Army PDES or with a condition that failed retention standards and/or was unfitting. It was determined he would pursue an MEB at his ARNG unit should it be necessary at that time. 5. While assigned to the Tennessee ARNG, he received a permanent physical profile rating of 3 for multiple injuries. Subsequently, an SMRB determined he did not meet retention standards due to a combination of multiple medical conditions, while not individually unfitting, but when taken as a whole, rendered him unfit for duty. The applicant wrote to the SMRB requesting medical retirement because his duty performance was inhibited by his service-connected injuries. At the time of the SMRB, his records did not contain any documentation substantiating these conditions were incurred in the LOD. 6. He was informed of the SMRB's determination and given an opportunity to appeal to a non-duty PEB, but chose not to do so. 7. Being credited with over 15 years of combined active duty and Reserve service, he was eligible for transfer to the Retired Reserve. He was subsequently properly separated under the provisions of National Guard Regulation 600-200, paragraph 8-36o, which provides for the involuntary separation from the State ARNG of Soldiers to be discharged and transferred to the Retired Reserve. 8. He was never eligible for COAD due to his status in the ARNG. The current request for COAR, nearly 8 years after his transfer to the Retired Reserve, is in direct conflict with the applicant's letter to the SMRB requesting medical retirement because his duty performance was inhibited by his service-connected injuries. Soldiers who have been determined unfit by the PDES may be COAR as an exception to policy. The primary objective of this program is to conserve manpower by effective use of needed skills or experience. A Soldier who is physically unqualified for further military service has no inherent or vested right to continuation. He never requested COAR, expressed his specific desire for a medical discharge, and there is no indication a request for COAR would have ever been approved had it been requested. 9. His related requests for promotions, back pay, and the Army Good Conduct Medal are predicated on the presumption a COAR would have been approved had he gone through the PDES and been found unfit, he would have remained on duty in an activated status with the ARNG for nearly 5 more years, and would have been twice promoted in that capacity. There is no evidence supporting these contentions or that he would have been eligible for consideration for promotion to staff sergeant or sergeant first class. Without COAR, he does not meet the eligibility considerations for award of a second Army Good Conduct Medal. 10. On 8 January 2015, an informal LOD investigation determined his cervical spinal stenosis and cervical radiculopathy resulting in surgery on 12 April 2007 was in the LOD. It is unclear why an LOD investigation was not completed at the time of his surgery while he was in an activated status and what the impetus was for its completion nearly 8 years later. Had the LOD been present prior to his REFRAD, it would not have changed the outcome of the REFRAD as he still did not have a permanent physical profile rating of 3 triggering his entry into PDES. 11. The fact that the LOD determination was not present at the time of his discharge from the Tennessee ARNG did alter the path that was taken to lead to his transfer to the Retired Reserve. Although the SMRB conducted a medical review and determined he did not meet medical retention standards based on the totality of his injuries, without an LOD, an MEB and a duty-related PEB could not be conducted. 12. The National Guard Bureau was previously consulted and recommended disapproval of his request for consideration of his medical conditions by an MEB and PEB. The applicant is already medically retired and has a 100-percent VA disability rating, thus would not receive anything additional from an MEB and PEB at this juncture. 13. The fact that the VA granted him a service-connected disability rating for multiple medical conditions after his REFRAD does not prove an error on the part of the Army. A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement" from the ARNG. The VA awards ratings because a medical condition is "service connected" and affects the individual's civilian employability. Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008752 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008752 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2