BOARD DATE: 10 November 2016 DOCKET NUMBER: AR20150011863 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 BOARD DATE: 10 November 2016 DOCKET NUMBER: AR20150011863 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 referring his records to the Integrated Disability Evaluation System (IDES) to determine if he should have been discharged or retired by reason of physical disability. a. In the event that a formal physical evaluation board (PEB) becomes necessary, these proceedings serve as the authority to issue the individual concerned 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. 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 his reinstatement into the U.S. Army Reserve. __________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: 10 November 2016 DOCKET NUMBER: AR20150011863 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, reinstatement into the U.S. Army Reserve (USAR) and then referral into the Integrated Disability Evaluation System (IDES). 2. The applicant states, in effect: * he was discharged from the USAR for unsatisfactory battle assembly attendance * prior to his discharge, he had requested a medical evaluation board (MEB); he submitted all the information that was required, but his unit never sent the documents he had requested from them * he was then discharged without being allowed to go through the MEB process 3. The applicant provides: * letter, issued by the Department of Veterans Affairs (VA), dated 2 August 2012 * DA Form 3349 (Physical Profile), with second signature dated 5 August 2012 * two memoranda for record (MFR), Subject: [applicant], dated 19 December 2012 and 4 June 2013, respectively * two VA Rating Decisions, dated 24 January 2013 and 23 July 2014 * 39 pages of VA medical records * email CONSIDERATION OF EVIDENCE: 1. The applicant was born on 1 February 1969. 2. Having had prior enlisted service in the Regular Army, the applicant enlisted in the USAR on 24 September 2005 in the rank/grade of specialist four/E-4. He held military occupational specialty (MOS) 56M (Chaplain Assistant). He served continuously through extensions and reenlistments, and rose to the rank/grade of staff sergeant/E-6. 3. The applicant was discharged under honorable conditions (general) from the USAR effective 17 February 2015. The authority for separation was listed as Army Regulation (AR) 135-178 (Enlisted Administrative Separations), with no paragraph cited. His official military personnel file (OMPF) is void of any documentation showing the basis for his discharge. 4. The applicant provides: a. Letter from a VA Behavioral Health (BH) provider, dated 2 August 2012, that essentially affirmed the applicant was diagnosed with post-traumatic stress disorder (PTSD) and major depression. The provider noted the applicant was at risk of suffering panic attacks, and would be requesting permission to miss battle assemblies so he could participate in treatment. b. DA Form 3349 (Physical Profile), with second signature dated 5 August 2012, shows the applicant: * was issued a permanent profile with level "3" (significant limitations) for three categories: "U," "L," and "S" [A physical profile is based on six body systems: "P" = physical capacity or stamina; "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" equating to having some activity limitations, and "3" indicating significant limitations. Profiles can either be permanent (P) or temporary (T)] * also showed a level "2" factor for "P" * medical conditions were PTSD, depression, pain in back, pain in left shoulder, pain in both knees, and high blood pressure * he was only able to perform 4 out of 10 functional activities and could not take either an Army Physical Fitness Test (APFT) or alternate APFT * reflected he needed a referral to a medical evaluation board (MEB) * signed by Lieutenant Colonel RG and Colonel JB (both physicians within the 81st Regional Support Command (RSC)) c. Two MFRs, dated 19 December 2012 and 4 June 2013 respectively, indicating the applicant's unit recognized he had not attended battle assemblies because of his medical conditions. d. Email from Staff Sergeant (SSG) TPG, Case Reviewer, Office of the Command Surgeon, 81st RSC, dated 18 February 2015. It states, in pertinent part: * the 81st RSC Command Surgeon received the applicant's case during a mass profile transfer from the Health Services Branch (HSB) * the applicant appeared ready to go before an MEB in 2012, but HSB never received the Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement (DA Form 7652) * because it was missing the DA Form 7652, it apparently just sat there; the case notes indicated the applicant was "noncompliant - at no fault of the SM (service member)" * his file contained documentation showing he had incurred injuries in the line of duty while serving as a paratrooper and military policeman * the unit was contacted in an effort to move his case forward in the PDES process, but the unit stated the applicant was being separated for nonparticipation * when the applicant was contacted, he affirmed he had missed battle assemblies, but this was because attending battle assemblies upset his mental well-being; he submitted a letter from his provider * according to the unit administrator (UA), she had not received communications from the applicant and indicated they had reached out to the applicant on several occasions without success * the UA was, however, only able to provide one MFR, dated in 2014, that recorded a telephonic counseling session with the applicant * it was apparent that miscommunications had occurred, and, had the applicant been processed appropriately in 2012, he would already have been processed through the PDES e. Two VA Rating Decisions: (1) Dated 24 January 2013, showing: * PTSD, 70 percent effective 23 May 2012 * left knee anterior cruciate ligament deficiency, 10 percent effective 23 May 2012 * right shoulder condition, 10 percent effective 23 May 2012 * hypertension, 10 percent * back condition and left shoulder strain, deferred (2) Dated 23 July 2014: * entitlement to individual unemployability effective 10 June 2013 * right knee instability increased form 10 percent to 20 percent effective 22 April 2014 * right knee strain decreased from 30 percent to 10 percent 5. On 7 October 2016, the Case Management Division (CMD), Army Review Boards Agency (ARBA) requested a medical advisory opinion from the ARBA medical advisor. On 11 October 2016, the ARBA medical advisory provided the following: a. CMD asked for a medical advisory opinion review of the applicant's case for alleged medical conditions warranting separation through medical channel, or medical conditions not considered during medical separation processing. b. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period 29 July 1988 through 11 July 1996, indicated he was discharged with an honorable character of service because of completion of required active service. Orders Number 15-042-00081, dated 11 February 2015, issued by Headquarters, 81st Regional Support Command, showed the applicant was discharged from the USAR effective 17 February 2015 under honorable conditions (general), per AR 135-178. c. The applicant was petitioning the Army Board for Correction of Military Records (ABCMR) to permit his referral to an MEB. He stated, "prior to my discharge I requested a medical board. I sent all of the information that was required of me, but my unit never sent the documents that were requested of them and I was discharged without being allowed to go through the MEB process. My request is that I be reinstated into the Army Reserves and be permitted to go through the MEB process." d. Brief Summary: * a review of AHLTA (Armed Forces Health Longitudinal Technology Application) revealed records from 29 December 2005 through 3 January 2014 * clinic visit on 29 December 2005 for weight concerns, "just went back into Reserves, weight higher than standards, but passed tape;" height - 69.5 inches; weight - 208.5 pounds; body mass index - 29.2 * DD Form 2807-1 (Report of Medical History), dated 6 June 2006, shows all questions answered in the negative (normal) for items 8 through 29 * DD Form 2808 (Report of Medical Examination), dated 6 June 2006, indicates an unremarkable examination (height - 70 inches; weight - 195 pounds); PULHES - 111111 * Standard Form (SF) 507 (Functional Capacity Certificate), dated 6 June 2005, with the answers to all questions reflected as normal * DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), rating period 16 December 2009 through 15 December 2010: * shows passing the Army Physical Fitness Test (APFT) * lists height/weight as 70/222 * no physical limitations or problems were noted * clinic visit for memory lapses/loss on 25 August 2010, with unremarkable neurological and psychiatric examinations * referred for a magnetic resonance imaging (MRI) and neuropsychiatric testing * these tests were secondary to progression of symptoms and a history of repeated traumatic brain injuries (TBI) incurred from boxing * no records of MRI or neuropsychiatric testing available from 2010 * NCOER, rating period 15 June 2011 through 14 June 2012: * refers to a profile (APFT date: 5 March 2012; height/weight: 71/235) * has bullet comments stating unable to participate in physical training (PT) or the APFT due to medical condition * notes he is unable to perform duties a chaplain's assistant; indicates he is nondeployable * shows no mental or behavioral limitations or problems * limited review of VA records through the Joint Legacy Viewer (JLV) shows 31 listed problems: * post-traumatic stress disorder (PTSD) and major depressive disorder (MDD) first entered on 24 May 2012 * no prior VA or DOD mental/BH diagnosis * medical statement from VA mental health provider, dated 2 August 2012, showing the applicant was diagnosed with PTSD and MDD, and had been followed since 27 April 2012 * DA Form 3349 (Physical Profile), dated 5 August 2012, for PTSD, depression, pain in back, pain in left shoulder, pain in both knees, and high blood pressure; permanent PULHES - 233113 * MRI - Brain, performed 28 August 2012, reportedly normal (per notation in VA medical note, but no official radiology report available) * memorandum from his commander, dated 19 December 2012, approving a 6-month extension and changing his expiration term of service (ETS) from 23 December 2012; contains comment: "This command understands [applicant] is undergoing an MRB (Medical Retention Board, apparently referring to an MOS/Medical Retention Board (MMRB)) and needs to reenlist pending this action. This command also understands that the above Soldier has not attended BA (battle assembly) since March due to his medical process." * VA Rating Decision, dated 24 January 2013, with effective date of 23 May 2012 showing service connection for PTSD and rating of 70 percent; also reflects ratings for: * right knee strain, 30 percent * left knee anterior cruciate ligament deficit, 10 percent * right shoulder condition, 10 percent * hypertension, 10 percent (continued) * back condition, left shoulder strain, and erectile dysfunction (deferred) * unit commander memorandum, dated 14 June 2013, approving a 6-month extension, changing his ETS from 23 June 2013, with similar comment as earlier extension, but adds he was attending BA (battle assembly) in local area * VA Mental Health outpatient treatment plan initial, dated 7 November 2013, with Axis I - PTSD, mood disorder, alcohol abuse; Axis II - deferred; Axis III - hypertension, joint disease; Axis IV - other stressors [The Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (published by the American Psychiatric Association), introduced a multi-axial system as a way of addressing the "whole person." It grew out of view that, to successfully intervene in an emotional or psychiatric disorder, the affected person needed to be understood from a variety of perspectives. Axis I refers broadly the principal disorder. Axis II lists any personality disorder that might be shaping the response to Axis I. Axis III lists any medical or neurological problems. Axis IV shows the major psychosocial stressors (i.e. divorce, job loss, etc.). Axis V codes the "level of function" on a scale of 0 to 100, with 100 being nearly perfect functioning.] * Pre-screening visit for PHA (Periodic Health Assessment), dated 11 December 2013, with PHQ-2 Depression Screen negative [The Patient Health Questionnaire - 2 (PHQ-2) is a screening tool that asks about the frequency over the past two weeks of depressed mood and anhedonia (inability to feel pleasure). It is used as part of a "first step" approach, and does not establish a final diagnosis or monitor depression severity.] * the 11 December 2013 visit also showed: * he was not taking hydrochlorothiazide (diuretic for high blood pressure) * two antidepressants, hormone injections, and daily thiamine pills * psychological review of symptoms and assessment, normal * started on medication for esophageal reflux; body mass index was 34 percent (height 70 inches, weight 240 pounds) * [Applicant was 44 years old; by regulation, maximum allowable body fat for Soldiers 40 years or older was 26 percent] * VA Rating Decision, dated 23 July 2014, shows right knee instability disability rating increased from 10 percent to 20 percent effective 22 April 2014; right knee strain decreased from 30 to 10 percent * no NCOER from 2010 through 2011 available for review * no DA Form 3349 (as cited on the NCOER for rating period 15 June 2011 through 14 June 2012 that shows "PROFILE 20120605" * no neuropsychological testing results available for review (as ordered in 2010) * no MRI brain results available for review (as ordered in 2010, and reportedly done in 2012 * no documentation of mental health and BH problems available for review prior to 2012 * documentation not available that was reportedly submitted by the applicant to the USAR for medical review e. When he was separated from active duty in 1996, The applicant met medical retention standards as outlined in AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). He also met medical retention standards stated in chapter 2 (Physical Standards for Enlistment, Appointment, and Induction) at the time of his USAR enlistment in 2005. He continued to meet medical retention standards through at least 2010. f. The applicant did not appear to meet medical retention standards as of 5 August 2012, the date of his DA Form 3349. It is unclear from the available medical documentation as to how or whether this applicant's medical issues were addressed between August 2012 and his separation on 17 February 2015. It is also not clear if the applicant's medical conditions were duly considered during his separation processing. g. The ARBA medical advisor recommends the Board consider referring this case into IDES. A review of the available documentation found some evidence of a possible medical disability or condition that might support a change in the characterization of service and/or the reason for discharge. 6. CMD provided a copy of the advisory to the applicant for his review and comment on 20 October 2016. The applicant did not submit a response. REFERENCES: 1. AR 40-400 (Medical Services - Patient Administration), in effect at the time, prescribed policies and mandated requirements for governing the management and administration of patients. It also provides guidance on MEB procedures in chapter 7 (Military Personnel Physical Disability Processing). a. Physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 and refer them into the PDES. b. Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the military occupational specialty (MOS)/medical retention board (MMRB). When they do not meet retention standards, MEB referral is mandatory, but not all MEBs require adjudication by a PEB. c. MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the member's medical status. 2. AR 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 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. b. Appendix E (Personnel Processing Actions) states enlisted personnel discharged because of physical disability will normally be characterized as honorable, but a general discharge under honorable conditions is authorized when that Soldier's service was satisfactory but not sufficiently meritorious to warrant an honorable characterization. 3. AR 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 AR 635-40. The PEB makes a determination as to fitness for continued military service. 4. Annex B of Execution Order (EXORD) Number 080-12, dated 17 February 2012, Subject: Army Disability Evaluation System (DES) Standardization, identified standards for the phases of DES processing. It stated referral into the PDES of a Soldier with a permanent 3 or 4 level profile was within three days of the second signature on the DA Form 3349 (Physical Profile). 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 6. 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. The applicant requests reinstatement into the USAR, and IDES referral to evaluate his medical conditions. 2. With regard to reinstatement, apart from his separation orders, his OMPF is void of any documentation showing the basis for his separation. He affirms, however, his general under honorable conditions discharge was the result of unsatisfactory battle assembly attendance. a. The Board begins its consideration of each case with the presumption of administrative regularity. Barring evidence to the contrary, it must be presumed his separation was processed in accordance with the law and those regulations in effect at the time, and that his rights were fully protected throughout the process. b. Based on the foregoing, there does not appear to be sufficient evidence to revoke his separation and reinstate him to his previous status in the USAR. 3. As to referral into IDES, the evidence provided by the applicant shows: * on 5 August 2012, he was issued DA Form 3349 with a permanent profile showing three categories rated at level "3; the profile further indicated he required referral to an MEB * two VA Rating Decisions (both dated prior to his separation in 2015) affirmed the conditions listed on his DA Form 3349, with PTSD being rated at 70 percent * email by an official with the 81st RSC Command Surgeon's office shows he was pending referral to an MEB but, because his unit failed to provide a DA Form 7652, no action was taken * he was eventually discharged, apparently because of nonparticipation 4. A review by the ARBA medical advisor found the applicant does appear to have failed medical retention standards prior to his separation, and recommends referral into IDES. 5. The evidence appears to support, as a matter of equity, referral of the applicant into IDES to determine if he had conditions that did not meet retention standards and, if such conditions were present, whether he should have been retired 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) AR20150011863 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011863 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2