IN THE CASE OF: BOARD DATE: 6 September 2016 DOCKET NUMBER: AR20150013061 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: 6 September 2016 DOCKET NUMBER: AR20150013061 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 6 September 2016 DOCKET NUMBER: AR20150013061 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: a. correction of his DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 26 October 2005, to show he was found unfit for duty vice fit for duty and assigned a fair disability rating and b. a personal hearing. 2. The applicant states it is unjust that the PEB found him fit for duty within the limitations of his profile. The DA Form 3349 (Physical Profile) stated he was nondeployable and nondeployable Soldiers cannot be in the Alabama Army National Guard (ALARNG). He was discharged by the Qualitative Retention Board (QRB) with no medical retirement and he lost his military technician (MILTECH) job of 18 years with no military retirement. 3. The applicant provides: * his DD Form 214 (Certificate of Release or Discharge from Active Duty) * memorandum for record (MFR), dated 27 August 2004 * DA Form 3349, dated 11 April 2005 * one page of DA Form 199, dated 22 September 2005 * two pages of DA Form 199, dated 26 October 2005 * memorandum, dated 5 April 2006 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 was born on 9 December 1959. Having had prior service in the Regular Army, he enlisted in the ALARNG on 19 July 1983 in the rank/grade of specialist four/E-4. On 4 March 1990, he was promoted to sergeant (SGT)/E-5. He held military occupational specialty (MOS) 92A (Automated Logistical Specialist). 3. He was ordered to active duty as a member of his ARNG unit in support of Operation Enduring Freedom (OEF) and entered active duty on 7 February 2003. He served in Kuwait from 17 April 2003 to 18 March 2004. 4. He was honorably released from active duty on 29 April 2004 and transferred to his ARNG unit. He completed 1 year, 4 months, and 29 days of creditable active service. The DD Form 214 he was issued shows the narrative reason for his separation as completion of required active service. 5. He provides an MFR, dated 27 August 2004, wherein a staff psychiatrist with Maxell Airforce Base, AL, stated the applicant was seen on 21 November 2003 for a voluntary evaluation. He was having significant suicidal thoughts during that time and had to be hospitalized at the Eisenhower Army Medical Center, Fort Gordon, GA. Since then, he had been 100 percent compliant with treatment and motivated for change and felt he could not perform if he was deployed because of his depression. He had successfully engaged in a safety plan since being treated. His diagnosis at the time was depression, not otherwise specified (NOS), and narcissistic features. 6. During December 2004, he received an annual Noncommissioned Officer Evaluation Report (NCOER) covering 12 months of rated time from December 2003 through November 2004 for his duties in MOS 92A in the ALARNG. This NCOER shows: * he was rated "Success" or "Excellence" in all values/NCO responsibilities * he met the height and weight standards and passed the Army Physical Fitness Test (APFT) with a score of 300 * his rater rated him with favorable comments in his duty proficiency and MOS competency * his senior rater rated him successful in terms of performance and superior in terms of potential 7. On 11 April 2005, he was issued a permanent profile of "3" in the S (Psychiatric) category of the PULHES for recurrent major depressive disorder. The profile stated he needed to be stationed near a medical treatment facility (MTF) where psychiatric care was available and he needed a medical evaluation board (MEB)/PEB. 8. On 29 July 2005, an MEB convened and found his condition of recurrent major depressive disorder did not meet medical retention standards. The MEB recommended referral to a PEB. 9. The applicant provides: a. Page 1 of DD Form 199, dated 22 September 2005, wherein it shows an informal PEB convened on that date and found his condition of recurrent major depressive disorder prevented him from the reasonable performance of the duties required of his grade and MOS. It shows the PEB determined: * there was compelling evidence to support a finding the condition existed prior to service (EPTS) and was not permanently aggravated beyond natural progression by his military service * the applicant had a history of recurrent depression and suicidal ideation for many years * depression was noted in 1996 when he was going through a divorce and was treated with psychotropic medication * the PEB found he was physically unfit and recommended his separation without benefits b. Two pages of DD Form 199, dated 26 October 2005, wherein it shows a formal PEB convened on that date and found him fit for duty within the limitations of his profile. It shows the PEB determined: * although diagnosed with major depressive disorder the applicant stated the primary reason he felt he was unfit was because he could not drive an 18-wheeler because he was dizzy * his open complaints of depression were headache, dizziness, weakness, stomach problems, and chest pain; when questioned by counsel he said yes to trouble sleeping, anxiety, and panic attacks * although hospitalized in November 2003 [while on leave] he returned to theater and stayed until the unit redeployed; he has returned to his MILTECH job * review of his records show he had had personality issues for a great portion of his life * as a 92A his stated depressive symptoms should not have an adverse impact on the performance of his duties except driving * during the formal proceedings the PEB reevaluated all available medical records and sworn testimony by the Soldier * the PEB recommended his separation without benefits 10. The complete MEB and PEB proceedings are not available for review with this case. 11. During December 2005, he received an annual NCOER covering 12 months of rated time from December 2004 through November 2005 for his duties in MOS 92A in the ALARNG. This NCOER shows: * he was rated "Success" or "Excellence" in all values/NCO responsibilities * he met the height and weight standards and passed the APFT with a score of 300 * his rater rated him with favorable comments in his duty proficiency and MOS competency * his senior rater rated him successful in terms of performance and superior in terms of potential 12. On 5 April 2006, he was informed he was selected for separation from the ARNG on 5 June 2006 as a result of the 2006 Enlisted QRB (EQRB) 13. He was honorably discharged from the ARNG on 5 June 2006 in the rank of SGT and transferred to the Retired Reserve. The National Guard Bureau (NGB) Form 22 he was issued shows he was discharged under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-36r, and Army Regulation (AR) 135-205 (Enlisted Personnel Management), chapter 4, by reason of non-selection for retention by an QRB. He was credited with 25 years, 11 months, and 18 days of total service for nonregular retired pay. 14. On 18 September 2013, the ABCMR denied the applicant's request for correction of his DD Form 214 to show he discharged from active duty on 29 April 2004 by reason of permanent disability vice completion of required active service. The Board determined that although he had been treated for depression while on active duty, he was found fit for retention at the time he was released on 29 April 2004 and he continued to serve in the ALARNG for an additional 2 years while receiving NCOERs that indicated he was fit for duty. 15. In the processing of this case an advisory opinion was received on 18 May 2016 from the U.S. Army Physical Disability Agency (USAPDA). The advisory official recommended denial of the applicant's request and opined: a. The applicant's MEB was completed on 29 July 2005 with a diagnosis of major depression disorder, recurrent. The MEB findings, supported by military psychiatrist evaluations, indicated the condition was incurred in 1996, not incurred while entitled to basic pay, EPTS, and was not permanently aggravated by the military service. The applicant appealed the EPTS findings. The MEB approving authority reviewed the medical evidence in the case file and denied his appeal. His profile included a limitation of carrying and firing a weapon and being deployed. His commander opined his condition was keeping him from adequately performing his assigned military duties. b. On 22 September 2005, an informal PEB found the applicant unfit for duty but found his condition was EPTS, not permanently service aggravated and recommended separation without benefits. He nonconcurred and demanded a formal hearing. His appeal continued to claim his condition was not EPTS. c. On 26 October 2005, a formal hearing was held and found him fit for duty. The PEB noted his primary complaint was when he was driving he got headaches and became dizzy. (1) Although the EPTS symptoms began to manifest themselves while home on leave from an active duty deployment, he returned to his deployment duties after treatment in the continental United States (CONUS) during his leave period and successfully completed his tour of duty. He continued to work as a civilian MILTECH after his deployment even though he was reported to have problems performing his ARNG weekend duties. (2) The PEB's findings of fit allowed him to continue employment as a MILTECH. The PEB determined that notwithstanding his profile restrictions his stated depressive symptoms should not have an adverse impact on the performance of his duties. The applicant nonconcurred and filed an appeal, again asserting he was unfit and his condition was not EPTS. The PEB and the USAPDA reviewed his appeal and concurred with the PEB findings. On 5 April 2006, he was informed by the ALARNG that he had been selected for separation by the EQRB. His separation was not based on his medical condition. (3) Although there is some evidence to support his contention that he should have been found unfit for duty, the PEB had the discretion to find that based on the applicant's testimony during the formal hearing, his MOS duties, his successful completion of his deployment, and his performance of his daily MILTECH duties, he was fit for duty within the limits of his profile. Even if the PEB had found him unfit, the finding would have been to separate without benefits based on the established medical findings of EPTS and no service aggravation. His military career was terminated by the ARNG based upon non-medical factors. (4) The applicant has not presented any new evidence to support that the MEB or PEB's findings were incorrect or unjust. The PEB's findings were supported by a preponderance of the evidence, were not arbitrary or capricious, and were not in violation of any statute, directive, or regulation. 16. On 24 May 2016, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received. 17. On 9 December 2019, the applicant will turn 60 years of age and will be eligible to collect Reserve retired pay. REFERENCES: 1. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following 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 result 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. When a member is being separated by reason other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit. 2. Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. 3. AR 135-205 provides the policy governing the selective retention of Soldiers in ARNG units and U.S. Army Reserve (USAR) Troop Program Units (TPU). It states: a. The Qualitative Retention Program provides for a review every 2 years of Reserve Component Soldiers serving in ARNG units and USAR TPUs who have 20 or more years of qualifying Service for non-regular retired pay to ensure only the best qualified Soldiers are retained beyond 20 years of qualifying service. b Soldiers who were not selected for retention in ARNG units or USAR TPUs are considered fully qualified for continued participation in the USAR as Individual Ready Reserve (IRR) Soldiers if they have not reached 60 years of age. Soldiers who were not selected for retention by a QRB will be transferred or reassigned to the Retired Reserve or to the IRR depending on the Soldier's option. 4. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. 2. The evidence of record confirms the applicant was processed through the legacy PDES upon receipt of a permanent profile of "3" and ultimately on 26 October 2005 a formal PEB found he was fit for duty within the limits of his profile for a condition that was EPTS. He appealed the findings and his appeal was denied. 3. His physical disability evaluation was conducted in accordance with law and regulations and he has not submitted substantiating evidence or an argument that would show an error or injustice occurred in his case. 4. As stated by the advisory official, the PEB was justified in the determination of fit for duty based on the applicant's testimony, review of all applicable records, and his continued satisfactory performance of his military duties. In addition, if he had been found unfit he would have been separated without benefits as the condition was determined to be EPTS. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013061 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013061 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2