IN THE CASE OF: BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150016093 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: 23 February 2017 DOCKET NUMBER: AR20150016093 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: 23 February 2017 DOCKET NUMBER: AR20150016093 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 due to his medical condition of diabetes mellitus type II. 2. The applicant states at the time of his discharge, he fought to stay in the service for love of his country. When the physical evaluation board (PEB) found him unfit for duty and made its decision, he lost his desire to fight the process. He also suffers from depressive disorder which was clearly noted by the Department of Veterans Affairs (VA). He has not mentally recovered from the decision of the PEB which removed him from serving his country. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA rating decision (page 2 only) * DA Form 3349 (Physical Profile) * Joint Department of Defense (DoD)/VA Disability Evaluation Pilot Referral 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 enlisted in the Regular Army on 3 March 2009 and he held military occupational specialty (MOS) 92F (Petroleum Supply Specialist). He served in Iraq from 8 October 2009 to 18 September 2010. He redeployed to Fort Benning, GA. 3. The applicant's medical narrative summary, a part of his medical evaluation, is not available for review. However, it appears he entered the Integrated Disability Evaluation System (IDES) following a medical examination that diagnosed him with various ailments as shown on his medical evaluation board (MEB). He was evaluated under the procedures of Army Regulation (AR) 40-501 (Standards of Medical Fitness). 4. On 10 November 2011, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found he was diagnosed with the conditions listed below. Only the medical condition of diabetes mellitus type II was found to not be medically acceptable and he was referred to a PEB for this condition. His diagnoses are shown on the table below. Diagnosis Met Retention Standards Did Not Meet Retention Standards Diabetes Mellitus Type II X Patellofemoral syndrome left knee X Patellofemoral syndrome right knee X Planter fasciitis secondary to planter calcareous spur left foot X Planter fasciitis secondary to planter calcareous spur right foot X Hypertension X Hyperlipidema X Astigmatism X 5. On 25 January 2012, after having been counseled, the applicant indicated he reviewed the contents of the MEB, agreed with the findings and recommendations, and authenticated the DA Form 3947 (MEB Proceedings) with his signature. He acknowledged: * he reviewed the contents of the MEB, physical profile, and narrative summary; he understood the PEB would only consider the conditions listed on his physical profile * the physical profile included all his conditions and whether or not they meet retention standards; the conditions that did not meet retention standards were properly listed * he provided all medical documents in his possession to be included in the MEB; he agreed that the MEB accurately covered his medical conditions at the time 6. On 3 February 2012, an informal PEB convened and based on the objective medical and personnel evidence of record, and considering the physical requirements for reasonable performance of duties required of his grade and MOS, the PEB found him fit for duty within the limitations of his profile. The PEB determined that: * his diabetes mellitus was controlled with medication * there was no indication his condition had any impact on his performance of his duties as a 92F 7. The PEB considered his other seven medical conditions and indicated that since the MEB found those conditions met retention standards, they were not ratable by the PEB. The PEB recommended his disposition be return to duty. 8. The applicant was counseled and he concurred with the PEB's findings and recommendations and waived his right to a formal hearing of his case. An official of the U.S. Army Physical Disability Agency approved the PEB's findings and recommendations on behalf of the Secretary of the Army. 9. On 29 July 2012, the applicant was honorably released from active duty under the provisions Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 16-7, based on a reduction in force. He was transferred to a unit in the Georgia Army National Guard (GAARNG). The DD Form 214 he was issued shows he completed 3 years, 4 months, and 27 days of net active service. 10. He enlisted in the GAARNG on 30 July 2012 and he was honorably separated from the ARNG on 1 December 2013 due to not being medically fit for retention in the ARNG. [His official military personnel file does not contain documents showing how the ARNG determined he was medically unfit for service in the ARNG.] 11. The applicant provided page 2 of his VA rating decision showing the VA awarded him service-connected disability compensation effective 30 July 2012 for depressive disorder (50 percent), obstructive sleep apnea (30 percent), lumbar spine degenerative joint disease (20 percent), urinary incontinence associated with diabetes mellitus (20 percent), and diabetes mellitus type II (20 percent). 12. During the processing of this case an advisory opinion was obtained from the Army Review Boards Agency Senior Medical Advisor: a. The applicant was honorably released from active duty due to reduction in force per AR 635-200, paragraph 16-7. He served from 3 March 2009 to 29 July 2012 with no lost time. The applicant is now petitioning for medical retirement. Per his application, he contends that "he should have been medically retired due to diabetes mellitus type II being found medically unacceptable by the MEB in accordance with AR 40-501, chapter 3-11(d)." The applicant provided several pages of documents in support of his request. b. A review of the applicant's electronic medical record (AHLTA) revealed clinical encounters between 4 March 2009 and 25 October 2013. He received a DA Form 3349 on January 2012 showing a permanent profile with a PULHES of 3-1-2-1-1-1, for diabetes mellitus type II with medication management (P3); left knee patellofemoral syndrome (L-2); right knee patellofemoral syndrome (L-2) and plantar fasciitis secondary to calcanei. c. The applicant was evaluated under the Joint DoD/VA Disability Evaluation Pilot Referral. The two documents reviewed were the VA/DoD Joint Disability Evaluation Board Claim dated 11 October 2011 and the MEB Proceedings dated 19 January 2012. A review shows the following diagnoses with both the MEB recommendation and the VA determination: * Diabetes mellitus type II – medically unacceptable in accordance with AR 40-501 chapter 3-11d; VA diagnosis – diabetes mellitus type 2, well controlled * Patellofemoral syndrome left knee – medically acceptable; no VA diagnosis * Patellofemoral syndrome right knee – medically acceptable; no VA diagnosis * Plantar fasciitis secondary to plantar calcaneus spur left foot – medically acceptable; no VA diagnosis * Plantar fasciitis secondary to plantar calcaneus spur right foot – medically acceptable; no VA diagnosis * Hypertension – medically acceptable; no VA diagnosis * Hyperlipidemia – medically acceptable; no VA diagnosis * Astigmatism – medically acceptable; no VA diagnosis d. His PEB, dated 3 February 2012, shows his disposition was "Fit for Duty" within the limits of his physical profile. The applicant’s medical condition of diabetes mellitus type 2 is controlled on oral medication. There is no indication that this condition had a negative impact on the performance of his MOS 92F (Petroleum Supply Specialist). Although his physical profile restricts deployment to an austere environment, there is no reason the applicant couldn't maintain proper nutrition in a field environment or while deployed because his MOS would necessitate frequent return to the rear to pick up fuel. His commander recommended retention. The PEB notes that the physical profile lists polyuria, a separate diagnosis which is medically acceptable; however the PEB deems it more appropriate to place this diagnosis with the diabetes because it is a part of the condition. e. The applicant underwent a behavioral health screening on 13 June 2012 with assessment of adjustment disorder with depressed mood. This was conducted as part of his separation processing. There were no other behavioral health encounters prior to this appointment. His nutrition assessment on 26 June 2012 was for his diabetic diet with a goal weight of 185 pounds. At the appointment his weight was 195 pounds and his body mass index was 30.6 percent. He was seen in the Internal Medicine Sleep Clinic for obstructive sleep apnea on 27 July 2012 and 27 August 2012 with a plan to continue to use the continuous positive airway pressure (CPAP) machine. f. The VA, on an unknown date, rated the applicant as follows with an effective date of 30 July 2012. [The day after his release from active duty date.] * depressive disorder – 50 percent * obstructive sleep apnea – 30 percent * lumbar spine degenerative joint disease, spondylosis and sacroiliitis (claimed as low back spasms and pain) – 20 percent * urinary incontinence (claimed as polyuria) associated with diabetes mellitus type II – 20 percent; * diabetes mellitus type II – 20 percent e. A comprehensive review of the applicant’s medical records shows upon his release from active duty he met medical retention standards in accordance with chapter 3 of AR 40-501 and AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. AR 40-501, paragraph 3-11 (Endocrine and metabolic disorders), notes that "The causes for referral to an MEB are as follows: (d) Diabetes mellitus, unless hemoglobin A1C can be maintained at less than 7 percent using only lifestyle modifications (diet, exercise)." The applicant was appropriately referred for an MEB, found to not meet this medical requirement, and referred to the PEB as required. The applicant's commander recommended retention. The applicant was found "Fit for Duty" by the PEB. f. The applicant's multiple medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 13. The applicant responded to the advisory opinion on 11 October 2016, stating: * it was always his intent to serve his country proudly for 20 years as a career Soldier and that is why he petitioned his commander to retain him in the service * polyuria, a separate diagnosis, is also placed with diabetes and initially rated by the VA at 20 percent because it is part of the condition * his behavioral health screening and assessment of adjustment disorder with depressed mood updated by the VA as depressive disorder (claimed as depression) rated at 30 percent, is considered secondary to diabetes * the medical evidence supports a finding that he meets the requirements for a medical retirement (based on the 30 percent rating) REFERENCES: 1. AR 635-40 establishes the Army disability system 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 or her office, grade, rank, or rating. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 2. Under IDES, the VA examines the Soldier and rates all identified conditions. The PEB then determines, based on all available evidence, which conditions render a Soldier unfit for continued military service in accordance with Army regulation. The PEB applies the rating assigned by the VA for each unfitting condition and recommends a combined rating and the appropriate disposition (generally separation with disability severance pay or retirement). If the Soldier is found fit, then the disposition would be return to duty. 3. DODI 1332.39 (Application of the Veterans Administration Schedule for Rating Disabilities) provides policy, assigns responsibilities and prescribes procedures for rating disabilities of Service members determined to be physically unfit and who are eligible for disability separation or retirement. Chapter 61 of Title 10, U.S. Code establishes the VASRD as the standard for assigning percentage ratings. The VASRD is a guide. The Military Departments must first determine fitness for duty. The percentage ratings represent, as far as can practicably be determined, the average impairment in civilian occupational earning capacity. 4. 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 an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have 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. 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 underwent a medical examination that led to a finding of a condition that initially failed to meet retention standards and warranted his entry into the disability evaluation system. He underwent an MEB which recommended his referral to a PEB. The PEB found his medical condition of diabetes mellitus type II did not prevent him from reasonably performing the duties required of his grade and military specialty. 2. The PEB determined the applicant to be physically fit for further military service and recommended his disposition be return to duty. The applicant agreed with the findings and recommendations and waived his right to a formal hearing of his case. 3. There is no evidence in his records indicating any additional conditions, including a behavioral health condition failed to meet retention standards and/or prevented him from performing his military duties while he was a member of the Regular Army. A disability rating assigned by the Army is based solely on conditions found to be unfitting while the Soldier is on active duty or a member of the Reserve component. 4. Upon his release from the Regular Army based on a reduction in force, he entered the ARNG. Within 1 year, it was determined he was "unfit" for medical retention and his unit discharged him accordingly. The applicant's personnel and medical records do not contain the ARNG decision documents and medical evidence that led to their decision to discharge him from the ARNG. The applicant also did not provide his ARNG medical or personnel records showing how the ARNG determined he was "unfit" for retention. 5. An award of a different rating by another agency does not establish error in the rating assigned by the Army. Operating under different laws and their own policies the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because a medical condition related to service (service-connected) affects the individual's civilian employability. 6. The applicant's physical disability evaluation during his period of active duty service was conducted in accordance with law and regulations and the applicant concurred with the recommendation of the PEB. At the time his medical condition only limited his ability to perform duty in austere environments. The medical evidence shows he managed his condition through diet and oral medication. Notwithstanding the limits of geographic assignments, he was found fit for duty and retained. He eventually was separated from the Regular Army due to a reduction in force. Concerning his processing through the PDES while a member of the Regular Army, there does not appear to be an error or an injustice in his case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016093 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016093 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2