BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20160001195 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: 13 July 2017 DOCKET NUMBER: AR20160001195 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: 13 July 2017 DOCKET NUMBER: AR20160001195 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 3 January 2011 or, in the alternative, reinstatement on active duty with all back pay and allowances and referral to the Integrated Disability Evaluation System (IDES). He also requests a personal appearance before the Board. 2. The applicant states he was discharged prior to completion of his medical care and without referral of his medical records to a medical evaluation board (MEB) and a physical evaluation board (PEB). This occurred despite the fact that he had a permanent physical profile rating of "3" based on debilitating medical problems. He also had orders directing his entry into the IDES with his release from active duty (REFRAD) only upon completion of medical care and the IDES process. He was evaluated by the Department of Veterans Affairs (VA) and was granted a 100-percent disability rating. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant's records to show he was medically discharged or retired effective 3 January 2011 or, in the alternative, reinstatement on active duty with all back pay and allowances and referral to the IDES. Additionally, he requests copies of all case summaries, staff briefs, advisory opinions, military or civilian investigation reports, other correspondence or documents, and all regulations considered in the review of the applicant's case. 2. In a 7-page brief, counsel states the applicant served over 15 years of inactive service and approximately 5 years of active service. He suffered multiple injuries and illnesses, including injuries to his left shoulder, left knee, left ankle, left elbow, and his head when he fell while playing softball as part of an Army physical fitness/training program. He was retained on active duty beyond completion of his tour of duty for medical processing. a. Counsel provides a summary of medical treatment the applicant received (with reference to the applicant's line-of-duty investigations, physical profiles, and military and civilian medical records) for the following injuries/medical conditions: * head injury (December 2009) * testicular lump (February 2010) * left shoulder, left knee, left ankle, left elbow injury involving pain/ discomfort after falling on left side during a softball game (March 2010) * headaches, nausea, lack of motor coordination, dizziness after falling on left side during a softball game (March 2010) * insomnia and sleep paralysis (March 2010) * difficulty breathing through both nostrils (March 2010) * skin lesion on the left side of neck (July 2010) * blurred vision and eye "floaters" (October 2010) b. Counsel notes the applicant was assigned temporary physical profiles on 2 September 2010 and 1 October 2010 for a head injury, lower back pain, left shoulder pain, left elbow pain, neck pain, and left knee pain that limited his physical fitness activity to walking, biking, or swimming at his own pace and distance. On 25 October 2010, the applicant was assigned a 90-day temporary physical profile for left shoulder impingement, acromioclavicular joint arthrosis in left shoulder, left posterior cruciate ligament tear, and lateral meniscus tear in left knee; however, the applicant was REFRAD without the opportunity for reevaluation. c. Counsel states the applicant's primary care manager/nurse practitioner completed paperwork related to the applicant's REFRAD and found him "fit for duty" despite his physical profile limitations and without consulting with the applicant's medical specialists. The applicant objected to his REFRAD and expressed his need for continued medical care. d. After the applicant's REFRAD on 2 January 2011, he continued to undergo treatment for his musculoskeletal injuries. The medical doctor determined he had "failed conservative treatment" and the applicant underwent surgery on his left knee. e. While at Tripler Army Medical Center (TAMC), HI, he submitted an application for disability compensation to the VA. He was examined in August 2013 and granted a total service-connected disability rating of 100 percent. f. Counsel states the applicant should not have been REFRAD at the TAMC because he continued to require medical treatment, his medical condition had not been resolved, and he did not complete the IDES process. Counsel refers to the entrance and exit criteria specified in the Warrior Transition Unit (WTU) Consolidated Guidance, updated 20 March 2009. He also states a Warrior Transition Command policy memorandum, dated 30 August 2013, states "Soldiers with unresolved 3 or 4 profile designators…are not generally eligible for involuntary REFRAD." He adds the applicant should have been referred to an MEB based on his physical profiles (i.e., PULHES of "3") and he offers details related to the applicant's limiting conditions. g. Counsel concludes it is likely the applicant would have received a greater than 30 percent disability rating and would have been medically retired, had he been referred to an MEB/PEB. 3. Counsel lists 13 enclosures pertaining to the applicant that include: * 11 DA Forms 2173 (Statement of Medical Examination and Duty Status) * 5 DA Forms 3349 (Physical Profile) * military and civilian medical records * a request for entrance into the Medical Retention Program * a request for early REFRAD and orders * VA Compensation Claim and disability rating decision * Department of Motor Vehicles Disability Placard 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 U.S. Army Reserve (USAR) on 9 March 1989. He was appointed as a Reserve warrant officer of the Army on 5 July 1990. He was subsequently appointed as a Reserve commissioned officer of the Army in the Army National Guard (ARNG) of the United States (ARNGUS) and the Utah ARNG in the rank of second lieutenant (aviation) on 20 December 1994. He was transferred to the USAR effective 2 June 1996. He attained the rank of captain on 11 October 2002. 3. On 5 March 2002, the applicant was reprimanded in writing by Major General C____ B____, Deputy Commanding General, Headquarters, USAR Command, Fort McPherson, GA, for being drunk at the CH-47E Aircraft Qualification Course on 23 February 2001, as confirmed by a command-directed biochemical test. a. The applicant was transferred to the Individual Ready Reserve before the Deputy Commanding General completed the written reprimand process. The applicant was properly notified on 22 November 2002 and he submitted his response on 13 January 2003. b. On 26 June 2003 after reviewing the facts and circumstances pertaining to the applicant's case, Lieutenant General J____ R. H____, Chief, Army Reserve, directed permanently filing the reprimand and allied documents in the applicant's Official Military Personnel File. 4. The applicant was ordered to active duty in support of Operation Iraqi Freedom on 7 November 2009 for a period of 400 days. He served in Iraq from 22 December 2009 through 16 August 2010. 5. On 1 January 2010, the applicant was notified that a Reserve Components (RC) Promotion Selection Board convened to consider officers for promotion to the next higher grade, but he was not recommended for promotion. A Selective Continuation Board subsequently convened to considered officers for continued service on the Reserve Active Status List and recommended his continuation of service in his present grade. 6. The DA Form 67-9 (Officer Evaluation Report) for the period 30 October 2009 through 11 August 2010 shows the applicant maintained the appropriate level of physical fitness, he met the Army height/weight standards, and he received a satisfactory/fully qualified performance evaluation. 7. On 27 September 2010, he was continued on active duty and assigned to the Warrior Transition Battalion (WTB), TAMC, HI, to participate in the RC Warriors in Transition Medical Retention Processing (MRP) Program for the purpose of medical care and treatment, medical evaluation, and processing through the IDES, if applicable. 8. A DD Form 214 shows the applicant entered active duty this period on 7 November 2009 and he was honorably REFRAD on 2 January 2011 under the provisions of Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), paragraph 2-7, based on completion of required active service; and transferred to a Reserve unit. He completed 1 year, 1 month, and 26 days of net active service during this period. Item 18 (Remarks) shows the applicant was retained on active duty to participate in the RC Warrior in Transition MRP Program. 9. On 16 February 2012, the Commander, U.S. Army Human Resources Command (HRC), Fort Knox, KY, approved the applicant's resignation in lieu of involuntary separation under the provisions of AR 135-175 (Separation of Officers). 10. HRC, Fort Knox, KY, Orders D-02-202960, dated 24 February 2012, honorably discharged the applicant from the USAR effective 23 March 2012. 11. In support of the application, his counsel provides copies of documents related to the applicant's medical conditions (previously identified in counsel's Request, Statement, and Evidence section, paragraph 3). The records were reviewed in detail by the Army Review Boards Agency (ARBA) senior medical advisor and are summarized in paragraph 12, below. 12. In the processing of this case, an advisory opinion was obtained from the ARBA Senior Medical Advisor, dated 30 November 2016. a. He stated a review of the applicant's electronic medical record revealed clinical encounters between June 2004 and October 2011. b. He provided a detailed analysis of the applicant's medical conditions documented in his service treatment records and VA medical examinations. c. He noted the following from the applicant's 23 August 2010 Soldier Readiness Processing, Primary Care at Fort Dix, NJ: * low back pain (since March 2010) * neck pain/discomfort from a fall (since March 2010) * left knee pain, hurts more when running (since March 2010) * difficulty breathing, especially from left nostril (since March 2010) * left testicular lump, tender to touch (since February 2010) * left elbow pain – resolved * left ankle pain – resolved * left shoulder pain – resolved * lump in back of head, from hitting back of head when he fell * insect bite in neck shoulder for 1 month with possible scar tissue d. On 2 September 2010 a medical doctor at Walson Army Medical Support Element, WTU, Fort Dix, NJ, notified the Commander, HRC, that the applicant required movement for evaluation at a WTU with a medical treatment facility near his home of record. e. The medical advisor also reviewed a 29 September 2010 WTU Physical Therapy comprehensive summary of musculoskeletal issues, evaluations, examinations, and treatment. He noted the applicant was moved to the TAMC and continued in WTB during October and November 2010 with multiple physical therapy, occupational therapy, pain management (injection therapy), chiropractic care, optometry reevaluations (subjective reports of vitreous floaters). The applicant missed a scheduled ophthalmology referral for his requested second opinion and several options for elective surgery (spermatocele, left knee). f. The medical advisor provided the following additional information: (1) He reviewed five DA Forms 3349 that were issued as temporary physical profiles for headaches, lower back pain, left shoulder pain, neck pain, left knee pain, and nasal bone. The conditions were found to be normal. (2) Headquarters, TAMC, memorandum, dated 17 November 2010, subject: Request Early Release from Active Duty, signed by the primary care manager/nurse practitioner resulted in the following recommendation: Fit for Duty – REFRAD to rejoin his unit. (3) Headquarters, TAMC, memorandum, dated 17 November 2010, subject: Return to Duty, shows the WTB chain of command all concurred with releasing the applicant to his unit. (4) HRC, Alexandria, VA, memorandum, dated 18 November 2010, subject: Request for Early REFRAD, approved the applicant's early REFRAD with a release date of no later than 2 January 2011. (5) The medical advisor noted the applicant missed a scheduled Nurse Care Management (NCM) appointment on 23 November 2010. The applicant reported to NCM on 30 November 2010 for out-processing with no subsequent encounters through his REFRAD on 2 January 2011. g. On 27 June 2011, the applicant was seen at Internal Medicine Primary Care Clinic, Walter Reed/Bethesda, requesting an MEB for his left shoulder, cervical and lumbar spine, and left knee problems. He was issued a temporary physical profile (PULHES: 333111) with an expiration date of 31 August 2011. h. He also noted that 12 DA Forms 2173 were completed at Fort Dix; 1 during the applicant's WTU stay and 11 were completed more than 1 year after his demobilization. He also provided a summary of the documents. i. A review of VA records through the Joint Legacy Viewer with 88 problems listed (34 VA entered) revealed: adjustment disorder, anxiety, post-traumatic stress disorder (PTSD), insomnia, neck and low back pain, cervical and lumbar radiculopathy, knee and hip pain, headache, hyperlipidemia, elevated liver functions, obstructive sleep apnea, varicocele, allergic rhinitis, gastroesophageal reflux disease, bulging intervertebral discs, sensorineural hearing loss, and personal history of traumatic brain injury (TBI). j. A VA rating decision, dated 28 October 2013, granted the applicant service connection for the following conditions: * obstructive sleep apnea (to include claim for insomnia) – 50 percent * mild degenerative disc and facet changes lumbar spine L3-L5 – 40 percent * tension headaches – 30 percent * intervertebral disc syndrome with upper radicular group involvement left upper extremity – 20 percent * residual scar status post arthroscopy left knee – 20 percent * arthritis status post grade I acromioclavicular joint separation with subacromial impingement syndrome left shoulder – 20 percent * intervertebral disc syndrome with sciatic nerve involvement left lower extremity – 10 percent * degenerative disc and facet changes cervical spine C3-4 and C6-7 – 10 percent * status post arthroscopy lateral meniscal tear left knee – 10 percent * status post arthroscopy lateral meniscal tear left knee with limitation of flexion – 10 percent * allergic rhinitis – 10 percent * bilateral tinnitus – 10 percent * degenerative changes left elbow – 0 percent * large complex cyst left epididymis (claimed as left testicle growth) – 0 percent * TBI – 0 percent k. The VA denied service connection for the following conditions: left ankle strain, premature ventricular contractions, unspecified skin condition to include nodules, tinea pedis, deviated nasal septum (acquired), cerumen impaction bilateral ears, PTSD, left hip condition, mild degenerative arthritis right hip, bilateral hearing loss, dry eye syndrome with vitreous floaters bilateral, single chorioretinal scar right eye, and nuclear presenile cataracts bilateral. l. The ARBA senior medical advisor found the available records do not reasonably support PTSD or another boardable behavioral health condition(s) existed at the time of the applicant's military service. m. He concluded the applicant met medical retention standards for neck pain, back pain, left shoulder pain, left knee pain, left elbow pain, nasal polyp/cyst, deviated septum, spermatocele, history of mild TBI, headaches, myopia/refractive error/floaters in accordance with AR 40-501 (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. n. He added the applicant had multiple temporary physical profiles issued during his participation in the RC Warriors in Transition MRP Program for the purpose of medical evaluation, and also at Fort Dix and the TAMC. There were no valid permanent physical profiles issued and the applicant was found fit for duty within the limits of this temporary physical profile. o. He further found the applicant's medical conditions were duly considered during his medical processing for separation. Additionally, a review of the available documentation found no evidence of a medical disability or condition which would support a change to the reason for the applicant's discharge. 13. On 2 December 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant or his counsel. REFERENCES: 1. AR 600-8-24, in effect at the time, prescribes officer transfers from active duty to the RC and discharge functions for all officers on active duty for 30 days or more. Chapter 2 (REFRAD of RC Commissioned and Warrant Officers), paragraph 2-7, provides rules and requirements to ensure Army officials ensure that an officer under their jurisdiction is released as scheduled. 2. AR 135-175 (Separation of Officers), in effect at the time, provides policy, criteria, and procedures for the separation of officers of the ARNGUS and USAR, except for officers serving on active duty or active duty for training exceeding 90 days. Chapter 2 (Involuntary Separation – ARNGUS and USAR Officers) prescribes the criteria and procedures governing the involuntary separation of Reserve officers of the Army when their retention is not in the best interest of the service. 3. AR 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 describes 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 these medical conditions and physical defects, individually or in combination, are those that: (1) significantly limit or interfere with the Soldier's performance of his or her duties; (2) may compromise or aggravate the Soldier's health or well-being if he or she were to remain in the military. 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; and/or (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. 4. 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. 5. 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. 6. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has a disability rated at least 30 percent. 7. 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. 8. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant and his counsel request a personal appearance before the Board and contend, in effect, that the applicant's records should be corrected to show he was medically retired effective 3 January 2011 based on medical conditions for which the VA granted him service-connected disability ratings prior to his REFRAD or, in the alternative, reinstatement on active duty with all back pay and allowances and referral to the IDES. 2. The applicant's request for a personal appearance hearing was carefully considered. 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. As a result, a personal appearance hearing is not necessary to serve the interests of equity and justice in this case. 3. The applicant was ordered to active duty on 7 November 2009 and he served in Iraq in support of Operation Iraqi Freedom. Upon redeployment, he was assigned to Walson Army Medical Support Activity, Fort Dix, and then further assigned to the WTB, TAMC, to participate in the RC Warriors in Transition MRP Program for the purpose of medical treatment, medical evaluation, and processing through the IDES, if applicable. The evidence of record shows the applicant's medical conditions were thoroughly documented and evaluated. 4. On 17 November 2010, the WTB chain of command found the applicant fit for duty and unanimously concurred with releasing him back to his USAR unit. On 18 November 2010, HRC approved the applicant's REFRAD with a release date of no later than 2 January 2011. The applicant subsequently tendered his unqualified resignation in lieu of involuntary separation from the USAR and he was discharged effective 23 March 2012. 5. There is no evidence of record that shows the applicant's medical conditions (individually or in combination) were medically unfitting for retention under the provisions of AR 40-501 requiring referral to an MEB. There is also no evidence that shows he was unable to perform his duties (within any specified temporary physical profile limitations) or that an acute grave illness or injury or other deterioration of physical condition occurred immediately prior to or coincident with his REFRAD that rendered him unfit. 6. The VA granted him service connection for disabilities with an overall combined rating of 100 percent effective 3 January 2011. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001195 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001195 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2