IN THE CASE OF: BOARD DATE: 6 December 2016 DOCKET NUMBER: AR20150011320 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ____x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 6 December 2016 DOCKET NUMBER: AR20150011320 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Directing that the Office of the Surgeon General review the available records to determine if the applicant should have been processed through the Physical Disability Evaluation System (PDES) prior to his release from active duty. If it is determined that he should have been referred to the PDES prior to his release, then these proceedings serve as the authority to afford him that process. b. Should a determination be made that the applicant should have been discharged or retired due to disability, these proceedings will serve as the authority to void his administrative separation and issue the appropriate separation retroactive to the appropriate date, with entitlement to any pay and allowances, less any entitlement already received. c. Concerning promotion to pay grade E-9 and subsequent retirement at pay grade E-9, if he is found unfit and retired for disability through the PDES, then the U.S. Army Physical Disability Agency in coordination with the Army Human Resources Command will review and make a grade determination in accordance with the applicable regulatory and statutory authorities. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to granting his request for a medical retirement and promotion without the benefit of processing through the PDES. ___________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: 6 December 2016 DOCKET NUMBER: AR20150011320 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 medical retirement and promotion to sergeant major (SGM)/E-9. 2. The applicant states the California Army National Guard (CAARNG) failed to: a. send him to a medical evaluation board (MEB) initiated by Madigan Army Medical Center on 10 February 2009; b. assign him to the Warrior Transition Unit/Community Based Health Care Organization (WTU/CBHCO) for an MEB in accordance with Department of the Army (DA) WTU Consolidated Guidance, dated 20 March 2009; and c. assign him to the WTU/CBHCO on 21 March 2009 following emergency surgery for a ruptured disc so he could continue physical therapy and rehabilitation at the David Grant Medical Center, Travis Air Force Base, California, until October 2009. 3. He states that, had he completed the MEB, he believes he would have been medically retired and promoted to pay grade E-9 in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 7-8b(2) because he was on a promotion list and had completed the Sergeants Major Academy. He further states that, effective 1 May 2009, the Department of Veterans Affairs (VA) determined he was unemployable based on permanent disability ratings of: * post-traumatic stress disorder (PTSD): 70 percent * right lower extremity radiculopathy: 40 percent * left lower extremity radiculopathy: 40 percent * right upper extremity radiculopathy: 10 percent * left upper extremity radiculopathy: 10 percent * tinnitus: 10 percent 4. He states the VA has determined he is totally disabled due to combat-related and service-related injuries, all of which would have been discovered during an MEB, to which the CAARNG refused to send him. 5. The applicant provides: * U. S. Army Human Resources letter, dated 19 June 2011, showing he was awarded combat-related special compensation (CRSC) * State of California Military Department Office of the Adjutant General letter, dated 15 June 2015, to a member of the State Assembly * State of California Military Department Office of the Adjutant General letter, dated 11 August 2014, to a member of the State Assembly * Madigan Army Medical Center letter, dated 10 February 2009, showing the applicant was not fit for duty * DA Form 3349 (Physical Profile), dated 26 February 2009' * convalescent leave form, dated 20 March 2009 * abbreviated discharge summary, dated 21 March 2009 * physical therapy appointment list * DD Form 2879 (Authorization for Disclosure of Medical or Dental Information), dated 1 May 2015 * VA Rating Decision letter, dated 15 June 2011 * DA Form 4187 (Personnel Action), dated 16 July 2008, showing the applicant's promotion to E-9 was approved * DA Form 1059 (Service School Academic Evaluation Report) showing he graduated from the Sergeant's Major Course on 30 June 2006 * E-9 Promotion List showing the applicant's name * DA Form 1559-R (Inspector General (IG) Action Request) 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. The applicant is a retired CAARNG master sergeant (MSG)/E-8. 3. He was inducted into the Army of the United States on 19 February 1969. He served in Vietnam and was awarded the Silver Star. He was honorably released from active duty (REFRAD) and transferred to the U. S. Army Reserve (USAR) on 23 September 1970. 4. He enlisted in the USAR on 18 April 1991 serving in a troop program unit. He enlisted in the CAARNG on 3 January 1996. 5. His record contains: a. A DA Form 4187, dated 11 November 2007, showing the applicant, while serving as an Active Guard/Reserve (AGR) MSG in the CAARNG, requested a mandatory (statutory) retirement age exception to policy. b. A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 25 February 2008, showing the applicant extended his AGR service by 5 months extending his separation date to 30 April 2009. 6. The applicant provided a 10 February 2009 Madigan Army Medical Center (MAMC) memorandum showing he was not fit for duty due to service connection and his case was forwarded to the MEB for further processing. 7. A DA Form 3349, dated 26 February 2009, shows he was issued a permanent profile for neck pain and low back pain (degenerative disk disease). Item 4c (Profile Type) shows the applicant "Needs MEB/PEB" because he does not meet the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 8. In his IG Action Request he states: a. On 7 February 2009 he enrolled in the Army Career and Alumni Program (ACAP) at Fort Lewis, Washington. b. On 10 February 2009 a memorandum was issued by MAMC to the CAARNG Surgeon General indicating the applicant was not fit for duty and an MEB was required. c. His ACAP counselor told him he would begin the ACAP and continue the MEB as part of out-processing. d. He was informed the MEB could be conducted at Travis Air Force Base, California, and his out-processing physical could be conducted at Presidio of Monterey, California. e. He participated in the ACAP at Travis Air Force Base. f. During regular physical training (PT) at the Travis gym field on 19 March 2009 he felt a pop in his lower back while jogging. He ended his work out and went home. g. The following morning his wife rushed him to the emergency room at David Grant Medical Center and he underwent surgery for a ruptured disk in his back. He was placed on convalescent leave until 20 April 2009. h. On 22 April 2009, he reported to the medical facility at Presidio of Monterey for his out-processing physical. He told the Presidio physician he was supposed to undergo an MEB. The physician told him he was not allowed an MEB because he was retiring. The physician's evaluation was all that was required for retirement. The physician further informed the applicant that an MEB could be conducted at Fort Lewis, Washington, but it wouldn't happen until after his retirement date of 1 May 2009. That would result in his retirement and pension being delayed and it would be on "your dime." i. On 27 April 2009 he began physical therapy. j. He spoke with the CAARNG Surgeon General's noncommissioned officer in charge (NCOIC), who said AGR branch told him he was to be retired on 1 May 2009 and an MEB would not be conducted. k. The applicant asked the AGR branch and his higher command if it was possible to continue on active duty as part of the Wounded Warrior Program or CBHCO. All told him it was not and he would retire on 1 May 2009. l. As he was unable to work until he recovered from his injury, he asked if he would be compensated. He was told no and to take it up with the VA. m. Since his "forced retirement" he has not been able to work. He nearly lost his home and had to sell his assets to live. n. Apparently this is not an isolated incident; as many as 30 members of the 40th Infantry Brigade Combat Team, Oregon Army National Guard, were being forced off active duty while they still required medical care. (Army Times, 31 May 2010). 10. The response to his IG Action Request is not available. (He was required to process his complaint through the CAARNG first prior to submitting it to the DAIG.) 11. In an undated memorandum, the applicant documents his efforts concerning: a. arranging for an MEB. Despite the efforts of an NCO, an MEB had not been scheduled as of 22 April 2009. b. his back injury occurred on 20 March 2009 during physical fitness training at the Travis Gym. He was in the middle of a two mile run when he felt a pop in his lower back. He was unable to finish the run and went home. The following morning his wife took him to the emergency room where the doctors discovered a herniated disk had ruptured resulting in a form of paralysis and a condition called "foot drop." He was rushed to emergency surgery with a 50-50 chance of full recovery. He was released from the hospital, placed on 30 days of convalescent leave, and scheduled to start physical therapy on April 2009. He contacted his higher headquarters, and notified them of his situation and asked to be put in the WTU or CBHCO. He was told, "No," and he would retired on 29 April 2009. c. his retirement physical. He received travel orders to attend his retirement physical at the medical clinic at Monterey on 21 April 2009. During the physical he explained his back injury and the, "Not Fit for Duty," report from Madigan. The doctor told him, in effect, that an MEB would not be scheduled and he should just take the regular retirement and get on with his life. He should forget the MEB and go to the VA for compensation for service-connected injuries. He and his wife considered his condition and all the options available and decided he should take the regular retirement and cancel the MEB efforts. d. his neck and back injuries. The VA's Pension and Compensation physician asked why he hadn't been placed in the Wounded Warrior Program. He suggested the applicant contact the Department of the Army IG. 12. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served on active duty from 3 January 1996 to 30 April 2009 when he was honorably REFRAD as a MSG. He had completed 13 years, 3 months, and 28 days of active service during the period covered by the DD Form 214 and had a total of 17 years, 2 months, and 17 days of active duty service. He had 6 years, 9 months, and 10 days of total inactive service. 13. On 1 May 2009 he was placed on the Retired List as a MSG/E-8. 14. In the processing of this case an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, National Guard Bureau (NGB). The opining official recommended approval of the applicant's request and noted: a. On 29 October 2007, the applicant was identified as having 18 years total active service, but would reach age 60 on 19 November 2008, requiring a five month extension waiver (for age) to achieve 20 years for a non-regular retirement. On 24 January 2008, the Adjutant General approved retention of the applicant for an additional five months in order to achieve 20 qualifying years of service, at which time he would be eligible for an immediate retirement annuity. Additionally, according to National Guard Regulation 600-5, (The Active Guard/Reserve (AGR) Program), Title 32 Full-Time National Guard Duty (FTNGD), 20 February 1990, paragraph 6-4a (2), states, "Enlisted AGR Soldiers reach age 50. Extensions are not authorized." The applicant was allowed to remain in the AGR program until his approved retirement of 1 May 2009. b. Based on the medical evidence, the applicant should undergo an MEB. If during the physical disability evaluation process he is found unfit for duty [and rated at a 30 percent or higher disability rating for unfitness], he should be medically retired with an effective date of 1 May 2009, to include all back pay and benefits if he is entitled to a higher retirement pay due to medical retirement. If medically retired, his record should be given consideration for promotion to SGM/E-9 in accordance with Title 10, U.S. Code, section 1372. c. This advisory opinion was coordinated with the NGB's Chief Surgeon's Office. 15. The applicant was provided a copy of the advisory opinion for his review and comment. He responded that he concurred with the advisory opinion. REFERENCES: 1. Title 10, U.S. Code (USC), 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. 2. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (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 (Disability Evaluation System) and Army Regulation 635-40 (Personnel Separations – Physical Evaluation for Retention, Retirement, or Separation). 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 to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a MEB * receive a permanent medical profile, P3 or P4, and are referred by an MOS 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 physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/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 or not 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 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 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 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. Paragraph 3-4 states under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following criteria to be eligible to receive retirement and severance pay benefits. a. Paragraph 3-2 states 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states that under the laws governing the Army PDES, 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. (1) 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 (IDT). (2) 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. 3. Title 10, USC, 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. 4. In accordance with Title 10, USC, section 1372 (Grade on Retirement for Physical Disability), any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: a. The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired. b. The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired. c. The permanent regular or Reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination. d. The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination. 5. 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. DISCUSSION: 1. The available evidence shows the applicant was determined to not be fit for duty on 10 February 2009 and his case was recommended for review by an MEB (entry into the PDES). 2. He was issued a permanent profile on 26 February 2009 due to neck pain and low back pain (degenerative disk disease). Item 4c of the profiling document shows the applicant, "Needs MEB/PEB." 3. He was on the SGM/E-9 promotion list. 4. The advisory opinion, which was coordinated with the NGB's Chief Surgeon's Office, recommends, in effect, that the applicant be afforded processing through the PDES to determine if he should be retired due to disability and, if so retired, that he be promoted to his promotion list grade. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011320 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011320 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2