BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150011878 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150011878 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________x_______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150011878 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, to void his discharge from the Individual Ready Reserve (IRR) of the U.S. Army Reserve (USAR), and replace it with a disability retirement. 2. The applicant states, in effect: a. He was assigned in a disability status to the IRR medical unit at St. Louis, MO. This assignment was due to the fact he has human immunodeficiency virus (HIV)/acquired immunodeficiency syndrome (AIDS). b. He attempted to reenlist for an additional 6 years, but was denied based on being considered medically unfit. He asserts this is an error and he should instead have been given a disability retirement with compensation. He has been in the IRR from 1993 until 26 May 2013. c. He was told he was ineligible when he tried to obtain a new military identification (ID) card at Fort Hamilton, NY. An official there said records showed he had been separated. Following an in-depth discussion, the official advised him to seek a change in his military status so that he could be issued a retired military ID card. 3. The applicant provides nearly 7,000 pages of Department of Veterans Affairs (VA) medical records for the period May 1993 to June 2015. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Having had prior enlisted service in the Regular Army and the New York Army National Guard (NYARNG), the applicant enlisted in the USAR on or about 21 February 1992. 3. According to VA medical records submitted by the applicant, he was diagnosed with HIV/AIDS in or around February 1993. 4. Orders Number C-09-931573, dated 24 September 1999, issued by the U.S. Army Reserve Personnel Center (ARPERCEN, later renamed the U.S. Army Human Resources Command (HRC)), reassigned the applicant from the USAR Control Group (Reinforcement) to the Standby Reserve (Active List), with an effective date of 24 September 1999. [USAR Soldiers with confirmed HIV are placed in the Standby Reserve (Active List). The Standby Reserve consists of Soldiers who want to maintain their military affiliation without being in the Select Reserve or Retired Reserve. It is a part of the IRR, and includes active and inactive lists. Soldiers on the active list are permitted to participate in Reserve training activities at no expense to the government, to earn retirement points, and to be eligible for promotion.] 5. A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the U.S.) dated 17 March 2000 indicates the applicant reenlisted in the Standby Reserve (Active List) for a period of 6 years. 6. A DD Form 4 dated 17 March 2006 shows the applicant reenlisted in the USAR for a term of 6 years, which gave him an expiration term of service (ETS) date of 17 March 2012. Under Section B (Agreements), subsection b (Remarks), it states, "This reenlistment antedated with approval of CDR (Commander), HRC - St. Louis (AHRC-RSE-E), on 2006-03-29." 7. Under the applicant's name and social security number in the Soldier Management System (SMS, a database managed by HRC) are the following entries: * 29 March 2006 to 8 April 2006 - Case, Retention - Antedated Reenlistment: "Soldier wishes to reenlist." "Per SG (Surgeon's) office faxed antedated contract to Soldier at [telephone number] because Soldier is still pending a Board process." "Reenlistment process has been completed and updated [databases], case closed." * 7 April 2006, Case, Orders: Orders Number D-03-606761 revoked by Orders Number D-03-606761R, dated 7 April 2006 * 27 April 2006 - Medical Periodic Physical, Surgeon's Review: "SM (service member) does not meet medical retention standards; medical disqualification memorandum to be mailed out" * 15 June 2006 - Contact, Physical Evaluation Board (PEB): "mailed SM NDR (non-duty related) PEB counseling guidelines, information memorandum, and DA Form 7349 (Initial Medical Review - Annual Medical Certificate);" the entry noted the suspense as 5 July 2006 * 20 June 2006 - Case, PEB: "received request from SG-A (Surgeon's Office) for administrative documents for NDR PEB;" documents sent on 26 June 2006 * 29 June 2006 - Case, PEB: "sent admin (administrative) document request to AHRC-PAP-A (unidentified office symbol within HRC - St. Louis) for NDR med board" * 19 March 2007 - Case, PEB: "this is the 2nd notice; mailed SM NDR PEB counseling guidelines, information memorandum, and DA Form 7349; S (suspense): 2 April 2007" 8. Orders Number D-03-204296, dated 20 March 2012, issued by HRC, honorably discharged the applicant effective 20 March 2012. The authority was Army Regulation (AR) 135-178 (Enlisted Administrative Separations). 9. DA Form 5016 (Chronological Statement of Retirement Points), dated 11 November 2016, reflects the applicant's service from February 1986 through 20 March 2012. a. He accumulated 1,746 total creditable points, which equates to 5 years and 8 months of service for retirement purposes. b. Between 21 February 1994 and 20 March 2012, he did not earn any active duty or inactive duty points. 10. The applicant provides nearly 7,000 pages of Department of Veterans Affairs (VA) medical records for the period May 1993 to June 2015. These records document the applicant's HIV/AIDS diagnosis and the very serious complications that have resulted. With each category generally sequenced from most recent entries to oldest, the records include the following: * radiology reports, (pages 1 - 86) * laboratory results, (pages 87 - 532) * discharge summaries, (pages 533 - 555) * progress notes, (pages 559 - 6925) * surgical information, (pages 6926 - 6953) * medical package information [electrocardiograms], (pages 6954 - 6963) 11. On 23 September 2016, the Army Review Boards Agency (ARBA) medical advisor provided the following advisory opinion: a. Case Management Division (CMD), ARBA, asked for a medical advisory opinion review of the applicant's case for either alleged medical conditions that warranted separation through medical channels, or medical conditions that were not considered during medical separation processing. b. Separation Orders and DD Form 214 (Certificate of Release or Discharge from Active Duty): (1) Orders Number D-03-204296, dated 20 March 2012, issued by HRC, showed the applicant was discharged with an honorable character of service. The authority was AR 135-78 [sic, AR 135-178)]. (2) Orders Number D-03-606761, dated 21 March 2006, issued by HRC, honorably discharged the applicant under the provisions of AR 135-178. [Orders were later revoked on 7 April 2006]. (3) Orders Number D-03-900638, dated 22 March 1995, issued by ARPERCEN, honorably discharged the applicant under the provisions of AR 135-178. (4) Orders Number D-02-417714, dated 22 February 1994, issued by the ARPERCEN, honorably discharged the applicant under the provisions of AR 135-178. (5) Orders Number 113-032, dated 11 June 1992, issued by the NYARNG, discharged the applicant and assigned him to the USAR Control Group (Annual Training) effective 1 June 1992. The authority was National Guard Regulation (NGR) 600-200 and vocal order of The Adjutant General, NYARNG. The type of discharge was general, and the tentative character of service was under honorable conditions. (6) DD Form 214, covering the period 21 February 1986 to 20 October 1989 and showing the applicant was honorably released from active duty due to expiration term of service. c. The applicant is petitioning for a medical retirement. He states, "I believed, I should have been discharged under 'disability retirement' or 'disability compensation' since I was in the IRR from 1993 through 26 May 2013 [sic]." Medical documentation from the VA was provided in support of the applicant's claim. d. Brief Summary. (1) A review of the applicant's Department of Defense (DOD) electronic medical record (Armed Forces Health Longitudinal Technology Application (AHLTA)) revealed no record or registration (AHLTA was implemented in 2003). (2) Standard Form (SF) 88 (Report of Medical Examination), dated 17 October 1999 reflected a normal clinical evaluation with no abnormalities, no significant or interval history, and no defects or diagnoses. He was qualified for retention and his HIV status is not addressed. His PULHES was 111111. [A physical profile is based on six body systems: "P" = physical capacity; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each factor has a numerical designation, with "1" meaning a high level of fitness. Profiles can either be permanent (P) or temporary (T).] (3) About 7,000 pages of VA medical treatment records were provided for review, consisting primarily of progress notes and several hundred pages of radiology and laboratory results. Based on a review, it is clear the applicant had several significant medical conditions under medical treatment, including HIV. (4) A limited review of VA records using the Joint Legacy Viewer (JLV) showed the following listed diagnoses that are related to the applicant's request: * 5 April 2016, Mixed Hyperlipidemia [genetic disorder causing high levels of both triglycerides and cholesterol] * 21 January 2016, other cystitis [inflammation of the urinary bladder] without hematuria [blood in the urine] * 4 February 2014, Hypercalcemia [above normal level of calcium in the blood] * 2 April 2012, encounter for therapeutic drug monitoring * 3 October 2011, obesity * 28 February 2011, screening for malignant neoplasms [cancerous tumor] of the skin * 25 September 2009, diseases due to viruses and chlamydiae [small parasitic bacteria], viral warts, or unspecified causes * 2 February 2009, lipodystrophy [abnormal or degenerative condition within the tissue containing body fat] * 20 October 2008, chronic pyelonephritis [inflammation of the substance of the kidney due to bacterial infection] * 27 June 2005, essential hypertension * 12 January 2005, bronchitis * 10 September 2004, pruritus [severe itching of the skin, as a symptom of various ailments] * 11 February 2000, issue repeat prescription * 23 August 1997, myalgia [pain in a muscle or group of muscles] and myositis [inflammation and degeneration of muscle tissue] NOS (not otherwise specified) * 27 June 1997, mood disorder due to medical condition * 1 May 1997, organic brain syndrome [general term describing decreased mental function due to a medical disease other than a psychiatric illness], NOS * 9 December 1996, dermatitis [red, swollen, and sore skin, sometimes with small blisters, due to an allergic reaction or direct contact with an external agent] * 9 December 1996, HIV and herpes simplex [viral infection that may produce cold sores, genital inflammation, or conjunctivitis (pink eye)], NOS e. While on active duty from 1986 to 1989, the applicant met medical retention standards in accordance with chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), AR 40-501 (Standards of Medical Fitness), and following the guidance set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), as in effect at the time. f. The applicant's medical conditions were duly considered during medical separation processing. g. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for discharge. 12. CMD provided a copy of the advisory to the applicant for his review and comment on 23 September 2016. The applicant did not submit a response. 13. In an email, dated 6 May 2016, an official from the U.S. Army Physical Disability Agency affirmed they had no record of a PEB having been conducted for the applicant. REFERENCES: 1. 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 3 (Policies) states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. b. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. c. Under the laws governing PDES, Soldiers with physically unfitting medical conditions must have incurred or aggravated those disabilities in the line of duty, and while entitled to basic pay, or as the result of performing active duty (ADT), or inactive duty (IDT), for training. d. Chapter 8 (Reserve Components (RC)) addresses the rules for processing Soldiers within the RC. It states, in order for an RC Soldier to be compensated under the PDES, there must be a determination by a PEB that the unfitting condition was the proximate result of performing duty. (1) A disability from injury is covered in the PDES when the injury was incurred in the line of duty, and the result of performing annual training, inactive duty training (IDT) (including IDT without pay under competent orders), or active duty for training. (2) Based on a November 1986 revision to the law, Soldiers may be referred into the PDES when they have incurred or aggravated a disease in the line of duty while performing inactive or active duty for training. Referral does not mean an automatic entitlement to disability compensation. 2. AR 40-501 sets forth policies regarding medical fitness for both enlistment and retention. a. Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction) provides standards to ensure individuals medically qualified for enlistment. Paragraphs 2-3 through 2-32 identify disqualifying medical conditions. Paragraph 2-30 (Systemic Diseases) lists the presence of HIV as being disqualifying. b. Chapter 3 identifies medical retention standards and, in paragraph 3-7 (Blood and Blood-Forming Tissue Diseases), it states HIV confirmed antibody positivity fails medical retention standards. For Reserve Component Soldiers not on active duty for more than 30 days, referral to a PEB will be determined under AR 635-40. Records of official diagnosis may be used as a basis for administrative action under the provisions of AR 135-178. 3. AR 600-110 (Identification, Surveillance, and Administration of Personnel Infected with HIV), in effect at the time, stated HIV-infected Soldiers will not be permitted to serve in the IRR. a. USAR HIV-infected Soldiers will have 120 days from the date they are notified of their infection to complete a medical evaluation to determine fitness. Those HIV-infected USAR Soldiers determined to be medically unfit will be separated. b. HIV-infected USAR Soldiers who demonstrate progressive clinical illness or immunological deficiency, as determined by medical authorities, do not meet medical retention standards and will be processed per AR 135-178. 4. AR 135-178, in effect at the time, states Soldiers who fail medical retention standards will be discharged. Exceptions are: * if granted a waiver under AR 40-501 * determined as fit by a non-duty related PEB * eligible for transfer to the Retired Reserve 5. DOD Instruction 1332.38 (Physical Disability Evaluation), in effect at the time, defined NDR medical conditions as, "impairments of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation. Members with NDR impairments are eligible to be referred to the PEB for solely a fitness determination, but not a determination of eligibility for disability benefits." 6. Memorandum, dated 28 February 2005, Subject: Policy/Guidance Memorandum #4: Processing RC NDR Cases, in effect at the time, implemented DOD policy that RC Soldiers pending separation for medical disqualification could request referral of their case to a PEB for a fitness determination. a. The determination of whether a case is forwarded to the PEB as an NDR case rests with the RC. The Soldier may not challenge this determination before the PEB. b. Soldiers who fall below the medical retention standards of AR 40-501, and who are pending separation for medical disqualification, may request a PEB. Separation action must be initiated in accordance with RC regulations prior to the Soldier requesting the PEB. The Soldier's request for PEB evaluation must be in writing. c. The DA Form 7349 is an acceptable document for adjudicating an NDR case. d. The RC is responsible for counseling the Soldier on their right to a PEB. 7. 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. DISCUSSION: 1. The applicant requests, in effect, the Board to void his honorable discharge from the USAR and replace it with a disability retirement. 2. The evidence of record shows the applicant was diagnosed with HIV in or around 1993 and, as a result, was assigned to the Standby Ready Reserve (Active List) in 1999. a. While he provides volumes of medical records that detail his struggle with HIV/AIDS, as well as the very serious complications which result, the applicant offers no evidence this medical condition was incurred in the line of duty, or that it was aggravated as a direct result of his military service. b. Further, there is no evidence that, as a member of the Standby Reserve (Active List), he participated in Reserve training activities, which could potentially have contributed to the aggravation of his medical condition, at any point between 1999 and his separation in 2012. c. Entries in HRC's SMS reflect he was determined to be medically disqualified after he reenlisted in March 2006. HRC attempted to offer the applicant an NDR PEB, but he apparently did not respond. It appears, based on his medical disqualification, he was not permitted to reenlist in 2012 and, as a result, was honorably discharged at the end of his term of service. d. Regulatory guidance does not permit Soldiers with medical disqualifications to reenlist. e. The preponderance of the evidence indicates his separation was proper in in accordance with the laws and regulations in effect at the time. There is no evidence that an error or injustice occurred in terms of his separation. 3. A review by the ARBA medical advisor stated, based on the available documentation, there was no evidence of a medical disability or condition that would support a change to the applicant's discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011878 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011878 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2