BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20150018726 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: 30 May 2017 DOCKET NUMBER: AR20150018726 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: 30 May 2017 DOCKET NUMBER: AR20150018726 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 medical retirement based on injuries incurred during his military service. 2. The applicant states that beginning in 2005 he was treated for physical and mental health issues stemming from his deployment to Iraq. He continued his treatment with the Department of Veterans Affairs (VA) after his separation. He submitted to numerous tests over many years which show that the injuries he sustained during active duty, and which made him non-deployable, continued to get worse. The VA currently rates his service connected post-traumatic stress disorder (PTSD) and spinal deficiencies at 100-percent and he is collecting Social Security insurance (SSI). He further contends that he requested a medical evaluation board (MEB); however, his chain of command decided to just let him separate at his expiration term of service (ETS). His conditions get worse every day and he needs help to resolve this issue. 3. The applicant provides: * DA Form 2173 (Statement of Medical Examination and Duty Status) * Service medical records for the period 11 December 2008 through 21 May 2009 * Various VA radiology reports, list of treatment facilities, and progress notes * VA Rating Decision (page 1), dated 24 March 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 prior active duty service in the Regular Army, the applicant transferred to the U.S. Army Reserve on 15 August 2005. He served in Iraq from 13 March to 21 April 2003 and again from 31 March 2004 to 26 March 2005. 3. On 1 April 2008, he was ordered to active duty in support of Operation Enduring Freedom. During this period of active duty, he injured his neck during urban operations training at Fort McCoy, WI, on 12 September 2008. His record contains a DD Form 2173, dated 16 January 2009, and a separate memorandum showing his injury of cervical disorder (cervical spine fracture at C5) was determined to be in the line of duty by appropriate authority. 4. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty on 3 March 2010 in accordance with chapter 4 of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) by reason of completion of required active service. He did not deploy overseas during this period. His records show he was discharged from the U.S. Army Reserve on 24 April 2010. 5. He provides his service and VA medical records. These records were reviewed by the Army Review Boards Agency (ARBA) Medical advisor. On 15 September 2016, after a thorough review, the senior medical advisor concluded that although the applicant clearly had medical and behavioral health conditions during his term of enlistment, he met Army medical retention standards for all conditions identified in the available medical records. The medical advisor found that the applicant’s medical conditions were duly considered during medical separation processing, and a review of the available documentation found no evidence of a medical disability or condition which would support a change to the discharge in this case. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or comment. He did not respond. REFERENCES: 1. AR 635-200 provides for the separation of enlisted personnel from active duty. Chapter 4 provides for separation due to expiration term of service or from members of the Reserve Component completion of required active service. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army physical disability evaluation system. It set 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. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. a. Paragraph 3-1 states the mere presences of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards are established in AR 40-501 (Standards of Medical Fitness), chapter 3. These guidelines are used to refer a Soldier to a medical evaluation board. b. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation, creates a presumption that the Soldier is fit. 3. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rated at less than 30 percent. Section 1212 provides that a member separated under Section 1203 is entitled to disability severance pay. 4. Title 38, U.S. Code, permits the VA to award compensation for disabilities which were incurred in or aggravated by active 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 employability. The Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, in order to compensate the individual for loss of civilian employability. DISCUSSION: 1. The applicant requests a medical retirement based on injuries incurred during his military service. 2. ARBA’s medical advisor found all of his medical conditions, including behavioral health conditions, were considered by medical authorities. There is no evidence of a medical disability or condition existing at the time of his release from active duty in 2010 that would support further medical evaluation and possible entrance into the physical disability evaluation system. It is through the physical disability evaluation system fitness or unfitness for duty decisions are rendered by appropriate authorities. The available evidence does not show there was a basis for referring the applicant to the physical disability evaluation system. 3. It is understood that medical conditions may worsen over time. The VA has the responsibility and jurisdiction to recognize any changes in conditions over time by adjusting its disability rating. Such adjustments – or service-connection for conditions that were not rated by the Army – are not evidence of an error on the part of the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018726 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018726 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2