IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150013489 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: 13 October 2016 DOCKET NUMBER: AR20150013489 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. IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150013489 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 correction of his records to show he was found medically unfit for continued military service and placed on the permanent disability retired list (PDRL). 2. The applicant states that he was assigned to 865th Combat Support Hospital and on physical profile during his last year of service in the U.S. Army Reserve (USAR). He states that his unit was aware that he filed disability claims with the Department of Veterans Affairs (VA) each year based on injuries he had received during his 20-year military career. During his separation processing he was not referred to a Medical Evaluation Board (MEB) and he was not properly advised on options pertaining to medical retirement. He concludes by stating he was administratively separated and transferred to the USAR Control Group (Retired Reserve) when he should have been medically retired. 3. The applicant provides copies of: * a self-authored statement (summarized above) * Department of the Air Force Review Boards Office letter * VA Request for and Authorization to Release Medical Records or Health Information * his VA medical records (compact disk, dated 7 June 2016; 1,161 pages) 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 had prior honorable enlisted service in the U.S. Navy/U.S. Naval Reserve and Air National Guard during the period 27 June 1980 to 26 June 2005. 3. He enlisted in the USAR on 5 August 2005 and was awarded military occupational specialty (MOS) 68G (Patient Administration Specialist). He was promoted to staff sergeant/pay grade E-6 on 1 January 2009. 4. Two DA Forms 2166-8 (NCO [Noncommissioned Officer] Evaluation Reports (NCOER)) show the applicant was assigned to Company B, 865th Combat Support Hospital and he performed duties as Personnel Administration Division NCO in Duty MOS 68G3O. a. The NCOER covering the period 9 August 2009 through 8 August 2010, in pertinent part, shows in: * Part IV (Values/NCO Responsibilities), block c (Physical Fitness and Military Bearing), the rater indicated – * Army Physical Fitness Test (APFT): "Pass, 15 May 2010" * "X" indicating "Success (Meets Standard)" with bullet comments – * "maintains military appearance and bearing" * "performs well under pressure" * the rater and senior rater assessed his overall performance as "Successful" * the applicant digitally signed the NCOER on 22 October 2010 b. The NCOER covering the period 9 August 2010 through 8 August 2011, in pertinent part, shows in: * Part IV, block c, the rater indicated – * APFT: "Profile, 3 February 2011" * "X" indicating "Success (Meets Standard)" with bullet comments – * "maintains military appearance and bearing" * "performs well under pressure" * "profile does not interfere with Soldier's ability to perform duties" * the rater and senior rater assessed his overall performance as "Successful" * the applicant digitally signed the NCOER on 31 July 2011 5. On 28 July 2011, the Chief, Reserve Retirements, U.S. Army Human Resources Command, Fort Knox, KY, notified the applicant that he had completed the required years of qualifying reserve service and he was eligible for retired pay upon application at age 60 (Twenty Year Letter). 6. The applicant's DA Form 5016 (Chronological Statement of Retirement Points) shows he was honorably discharged on 14 January 2012 and transferred to the USAR Control Group (Retired Reserve) effective 15 January 2012. At the time he had 20 years, 8 months, and 10 days of qualifying service for retirement. 7. A review of the applicant's military service records failed to reveal: * a copy of his DA Form 3349 (Physical Profile) * evidence that he was referred to an MEB or found medically disqualified for further military service * comments, rebuttal, or appeal of his final NCOER 8. In support of his request the applicant provides the following documents. a. Department of the Air Force, Review Boards Office, Randolph Air Force Base, TX, letter, dated 14 July 2015, that shows the Chief, Physical Disability Board of Review (PDBR) Intake Analysis, Air Force Review Boards Agency, informed the applicant that the PDBR is statutorily empowered to reassess the accuracy and fairness of the combined disability rating assessed to Service members who were discharged subsequent to 11 September 2001, but prior to 31 December 2009 as unfit for continued military service by the Military Department with a combined rating of 20 percent or less and were not found to be eligible for retirement. He was also informed that a review of his application determined that he did not meet the program criteria. b. VA Request for and Authorization to Release Medical Records or Health Information and his VA medical records (provided on a compact disk, dated 7 June 2016, with 1,161 total pages from July 2000 forward) that include Radiology Reports, Lab Results, Immunizations, Consult Requests, Progress Notes, and Surgical Information. A review of the records revealed a VA Medical Center, Consult Request, Syracuse, NY, dated 23 December 2011, that documented his service-connected/rated disabilities, as follows: * service-connection/rated disabilities (total) percent (%): 90% * rated disabilities – * Major Depressive Disorder: 70% * Limited Flexion of Knee: 10% * Knee Condition: 10% * Limited Motion of Ankle: 10% * Tinnitus: 10% * Arthritis, Degenerative: 10% * Limited Flexion of Knee: 10% REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) provides standards for induction, enlistment, appointment, retention, and related policies and procedures. a. Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for Soldiers and are cause for referral to an MEB. b. Chapter 9 (Army Reserve Medical Examinations) sets basic policies and procedures for medical examinations and the periodic health assessment. Paragraph 9-10 (Disposition of medically unfit Reservists) shows that, normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) or discharged from the USAR. They will be transferred to the Retired Reserve only if eligible. 2. Army Regulation 140-10 covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers. Chapter 6 (Transfer to and from the Retired Reserve), section I (Transfer to the Retired Reserve), paragraph 6-1 (Eligibility), shows assignment to the Retired Reserve is authorized for eligible Soldiers who are entitled to receive retired pay from the U.S. Armed Forces because of prior military service; have completed a total of 20 years of active or inactive service in the U.S. Armed Forces; and, in pertinent part, are medically disqualified for active duty resulting from a service-connected disability. Soldiers must request transfer to the Retired Reserve. 3. 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 VA rating does not establish error or injustice on the part of the Army. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at different disability ratings based on the same impairments. Furthermore, 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. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA (and some other government agencies) may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. DISCUSSION: 1. The applicant contends that his records should be corrected to show he was referred to an MEB, found medically unfit for continued military service, and placed on the PDRL because he was on a physical profile during his last year of service in the USAR, his unit was aware that he had filed VA disability claims, and he was not properly advised on options pertaining to medical retirement. 2. The evidence of record shows the applicant was serving as Personnel Administration Division NCO (MOS 68G3O), 865th Combat Support Hospital, during the period of service under review. a. He was issued a physical profile on 3 February 2011 and his NCOER covering the period 9 August 2010 through 8 August 2011 confirms he was on physical profile at the time. b. The evidence of record also shows the rater confirmed that the physical "profile does not interfere with Soldier's ability to perform duties." The applicant placed his signature on the NCOER on 31 July 2011. c. There is no evidence of record that shows he submitted comments, rebuttal, or an appeal as to the accuracy of the rater's comment on the NCOER. 3. There is no evidence of record that shows the applicant had an unfitting medical condition or that he was found medically disqualified for military service. 4. The evidence of record shows the applicant was serving as supervisor in a duty position responsible for patient administration in a Combat Support Hospital. a. He contends he was not properly advised on options pertaining to medical retirement. b. Based on the applicant's grade, years of service, and the duty position he held at the time, it is reasonable to conclude that he was familiar with the Army regulations governing medical separation/retirement. It is also reasonable to conclude that he was aware of the offices/officials in the hospital responsible for providing detailed information related to medical separation/retirement. c. In any event, the governing Army regulation shows that eligible Soldiers who are entitled to receive retired pay based on completion of a total of 20 years of active or inactive service in the U.S. Armed Forces and who are medically disqualified for active duty resulting from a service-connected disability may request transfer to the Retired Reserve. 5. The evidence of record shows the applicant transferred to the USAR Control Group (Retired Reserve) effective 15 January 2012. 6. Considering all the facts of this case, the applicant's discharge and retirement was appropriate and equitable. 7. Both the statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service. Furthermore, the condition(s) can only be rated to the extent that the condition(s) limit(s) the performance of duty. The VA on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013489 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013489 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2