BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20150019045 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: 1 June 2017 DOCKET NUMBER: AR20150019045 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: 1 June 2017 DOCKET NUMBER: AR20150019045 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 medically retired effective 1 March 2009. 2. The applicant states, in effect, that his medical records should have been referred to a Medical Evaluation Board (MEB) and a Physical Evaluation Board (PEB) based on his debilitating medical problems. a. While he was still on active duty, in a Benefits Delivery at Discharge, the Department of Veterans Affairs (VA) granted him service connection for medical conditions with a disability rating of 90 percent (%). His medical conditions rendered him marginally effective as an officer. The main symptoms included constant shortness of breath, blackouts after physical activity, extreme fatigue, and extreme pain in his right foot. Some of these symptoms limited his ability to do physical training, which resulted in him failing the Army Physical Fitness Test (APFT) and caused him to gain weight, which resulted in his enrollment in the Army Weight Control Program (AWCP). This is in contrast to earlier in his career when he was a high performer and earned the APFT Badge. b. Army medical doctors diagnosed him with sleep apnea, cardiomyopathy (heart disease), asthma, allergies, and plantar fasciitis (heel spur). The VA also diagnosed him with anxiety while he was still on active duty, but the condition is not recorded in his military medical record. c. He states that during the period prior to his separation from active duty he was going through a difficult period of his life involving a divorce and fighting for custody of his children. He did not want to admit weakness, but it is clear that it affected his duty performance. d. He states that his shortness of breath developed in the fall of 2005. He notes that he had three instances of inhalation exposure to hazardous materials. In 2002, he inhaled vaporized Fire-Retarding Hydraulic Fluid (FRHF) when the hydraulic replenisher in his M1A1 Main Battle Tank exploded, vaporing the FRHF and exposing him to inhalation, and skin and eye contact to the vaporized FRHF. During renovations in the summer to fall of 2005, he had two simultaneous exposures to hazardous materials at his office at Fort Knox, KY. One involved asbestos that was being removed from the walls when the workers failed to maintain a proper barrier. At this same time, the air ducts had an infestation of black mold that he breathed until they were cleaned. He notes that medical specialists at the Occupational Health Department, Ireland Army Community Hospital, Fort Knox, KY, were unable to determine if his medical condition was caused by past or recent inhalation exposures. e. He decided to resign his commission during a difficult period in his military career. He requested an MEB, but the Army medical doctor dismissed his questions and merely made a notation in his medical records. He adds the Army doctors treated him as a malingerer and in a condescending manner. 3. The applicant provides copies of the following documents – * Army medical records * VA medical examinations and disability rating decisions * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 appointed as a commissioned officer in the Regular Army (RA), in the rank of second lieutenant (armor), on 28 May 1994. He attained the rank of captain/pay grade O-3 on 1 June 1998. 3. A review of the applicant's Officer Evaluation Reports (OERs), a total of 16 OERs spanning the period from 19 November 1994 through 31 July 2005, shows he consistently passed the APFT and met AWCP standards. 4. On 21 July 2003, the Commanding General (CG), 1st Infantry Division (Germany), issued a General Officer Memorandum of Record (GOMOR) to the applicant for operating a motor vehicle while under the influence of alcohol on 17 June 2003. He directed the GOMOR be filed in the performance folder of the applicant's Official Military Personnel File (OMPF). a. On 22 November 2004, the applicant petitioned the Department of the Army Suitability Evaluation Board (DASEB) and requested transfer of the GOMOR to the restricted folder of his OMPF. b. On 20 April 2005, the DASEB approved his request and directed transfer of the GOMOR from the performance folder to the restricted folder of his OMPF. 5. The applicant was promoted to the rank of major/pay grade O-4 on 4 May 2006. 6. A review of the applicant's OERs spanning the period from 1 August 2005 through 11 December 2008, in pertinent part, shows the following: * during the period 1 August 2005 through 31 July 2006 he – * passed the APFT * was not in compliance with AWCP standards * was involved in an incident at his quarters where he displayed conduct unbecoming an officer * received a satisfactory performance evaluation * during the period 1 August 2006 through 31 July 2007 he – * failed the APFT * was not in compliance with AWCP standards * was burdened by very difficult family issues * received a satisfactory performance evaluation * during the period 1 August 2007 through 15 March 2008 he – * failed the APFT * was not in compliance with AWCP standards * was burdened by very difficult family issues * received a satisfactory performance evaluation * during the period 16 March 2008 through 11 December 2008 he – * had a physical profile that exempted him from the APFT * was not in compliance with AWCP standards * received a satisfactory performance evaluation 7. On 8 August 2008, the applicant tendered his unqualified resignation from the RA under the provisions of (UP) Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), chapter 3 (Resignations), paragraph 3-5, effective 28 February 2009. He stated that he was under suspension of favorable personnel actions due to being overweight. He also stated that he was unavailable for worldwide deployment due to lack of a viable Family Care Plan and severe family hardship (i.e., he was recently divorced and had custody of his three children). 8. His chain of command recommended approval of his unqualified resignation. 9. The Commander, U.S. Army Human Resources Command (HRC), approved the applicant's unqualified resignation. 10. A DD Form 214 shows the applicant was honorably discharged from the RA on 28 February 2009 UP AR 600-8-24, paragraph 3-5, for miscellaneous/general reasons. He had completed 14 years, 9 months, and 3 days of total active service. 11. A review of the applicant's military records failed to reveal a copy of a separation medical examination. 12. In support of his application the applicant provides the following documents. a. Copies of his military medical records (over 500 pages). A review of the records failed to reveal a copy of a separation medical examination. This review did reveal a DA Form 3349 (Physical Profile) that shows the applicant was issued a 60-day temporary physical profile with a PULHES of 112111 ("2" for his left lower extremity) on 25 November 2008. Information pertaining to the review of the available medical records by a medical professional is provided in paragraph 13, below. b. His post-service medical records, dated 31 December 2008 and 7 January 2009, that show diagnoses of asthma, allergies (allergic rhinitis), sleep apnea treated with continuous positive airway pressure (CPAP), cardiomyopathy (mild tricuspid valve regurgitation/moderate mitral valve regurgitation), acid reflux, hiatal hernia (gastroesophageal reflux disease (GERD)), right foot plantar fasciitis (heel spur/stress fracture), and obesity. c. VA Rating Decision, dated 23 April 2009, and Benefits Delivery Discharge, dated 4 May 2009, that show, effective 1 March 2009, he was granted service connection with an overall combined rating of 90% for: * mitral and tricuspid regurgitation – 60% * obstructive sleep apnea and asthma – 50% * anxiety disorder, not otherwise specified (NOS) – 30% * temporomandibular joint disorder – 10% * tinnitus – 10% * GERD – 10% * right foot plantar fasciitis and inferior calcaneal spur – 10% * varicose veins, left lower extremity – 0% * varicose veins, right lower extremity – 0% * onychomycosis, bilateral fifth toes – 0% * seasonal allergic rhinitis – 0% d. Two VA letters, dated 6 December 2012 and 1 December 2014, that show the applicant's combined service-connected evaluation as 90%. 13. In the processing of this case, an advisory opinion was obtained from the medical staff, Army Review Boards Agency (ARBA), dated 12 September 2016. a. A review of the applicant's electronic medical record by the senior medical advisor revealed documentation between 2006 and 2009. In addition, the applicant's service treatment records (over 500 pages) included documentation back through his military education at the U.S. Military Academy. b. The ARBA senior medical advisor provided a detailed analysis of the applicant's medical conditions documented in his service treatment records and VA medical examinations. He noted the applicant did not provide any APFT records or other military documentation pertaining to his weight control issue. c. The ARBA senior medical advisor found that the applicant met medical retention standards in accordance with AR 635-40 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. He noted the applicant apparently did not meet standards per AR 600-9 (The AWCP). d. He found the applicant's medical conditions were duly considered during medical separation processing. 14. On 12 September 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity to submit comments or a rebuttal. a. He stated he did not provide any APFT or AWCP documentation because he does not have any copies. He provided a copy of his OER for the period 1 August 2007 through 15 March 2008 that shows he failed the APFT and that he did not meet the standards of the AWCP. b. He stated the advisory opinion notes multiple entries in his medical records showing he did not meet height/weight or body fat standards and that he had referrals for nutrition counseling or other related examinations. After he quit smoking in 2004, he gained about 25 pounds and started having weight control issues. c. He added that his constant shortness of breath and blackouts and plantar fasciitis pain started in the fall of 2005. As a result, his physical activity decreased and he gained weight. d. He stated the advisory opinion minimizes events at the Pulmonary Clinic when performing pulmonary function tests. The tests triggered severe shortness of breath and he started to black out. On one occasion (4 May 2007), he was referred to a cardiac center where they performed a heart catheterization. To state that his shortness of breath or performance on the APFT was "unremarkable" is inaccurate. e. He disagreed with the medical advisory opinion that he met medical retention standards. He restated that his inquiries about an MEB were dismissed because he had already submitted his unqualified resignation. He references and provides extracts from AR 40-501 pertaining to paragraph 3-13b(5) (Plantar fasciitis), paragraph 3-21c (Myocardial disease), paragraph 3-27a (Asthma), paragraph 3-33c (Anxiety), paragraph 3-41a(1) (Allergies), and paragraph 3-41c (Sleep apnea). He states that the conditions are documented in his medical records, the VA has granted him service connection for the disabilities, and he asserts that the symptoms he displayed show he did not meet medical retention standards. REFERENCES: 1. AR 600-8-24, in effect at the time, prescribes officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more. The Secretary of the Army or his designee may accept resignations and orders will be issued by direction of the CG, HRC. An officer whose resignation has been accepted will be separated on the date specified in Headquarters, Department of the Army (HQDA) orders or as otherwise directed by HQDA. An appropriate discharge certificate as specified by the CG, HRC, will be furnished by the appropriate commander at the time the officer is separated. Chapter 3, paragraph 3-5, provides that any officer on active duty (for more than 90 calendar days) may tender a resignation under this paragraph except when action is pending that could result in resignation for the good of the Service; officer is under a suspension of favorable actions, pending investigation, under charges; or any other unfavorable or derogatory action is pending. 2. AR 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. 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 in the active Army. a. Paragraph 3-1 (General) shows that these medical conditions and physical defects, individually or in combination, are those that: (1) Significantly limit or interfere with the Soldier's performance of their duties. (2) May compromise or aggravate the Soldier's health or well-being if they were to remain in the military service. This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring. (3) May compromise the health or well-being of other Soldiers. (4) May prejudice the best interests of the Government if the individual were to remain in the military service. b. Paragraph 3-4 (General policy) shows that possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service. 3. AR 635-40 sets forth policies, responsibilities, and procedures 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. a. Chapter 1 (Introduction) provides that, 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 his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty. b. Chapter 3 (Policies) provides that the mere presence 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 his or her office, rank, grade or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty. 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. 4. 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. 5. Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has a disability rated at least 30 percent. 6. 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 (or other government agency) disability 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, in effect, that his records should be corrected to show he was medically retired based on medical conditions for which the VA granted him service connected disability ratings prior to his discharge from active duty. 2. The evidence of record shows the applicant failed to meet the standards of the AWCP in the fall of 2005. At about this same time, the applicant began to encounter family difficulties and his duty performance was rated as satisfactory. Subsequent OERs show he failed the APFT and he continued to fail to meet AWCP standards, but his duty performance continued to be average. 3. On 8 August 2008, he tendered his unqualified resignation from the RA because he was under suspension of favorable personnel actions due to being overweight and he was unavailable for worldwide deployment due to lack of a viable Family Care Plan. 4. He was issued a 60-day temporary physical profile on 25 November 2008 with a PULHES of 112111 for his left lower extremity. There is no evidence of record that shows the applicant was unable to perform his military duties (within the limits of his temporary physical profile) due to any of his medical conditions. 5. The ARBA senior medical advisor found that the applicant met medical retention standards. He noted the applicant apparently did not meet standards per AR 600-9. The medical advisor found the applicant's medical conditions were duly considered during medical separation processing. His disagreement with the advisory opinion is noted. 6. The VA granted him service connection for disabilities with an overall combined rating of 90%, effective 1 March 2009. 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 (and some other Government agencies), 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. A VA service-connected disability rating is not, in itself, evidence that a Soldier was medically unfit to perform duties required of his rank and specialty. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017998 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019045 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2