BOARD DATE: 5 April 2018 DOCKET NUMBER: AR20170007808 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: 5 April 2018 DOCKET NUMBER: AR20170007808 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: 5 April 2018 DOCKET NUMBER: AR20170007808 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests reinstatement of the applicant to active duty to complete 20 years of active service for Regular retirement. 2. Counsel states: a. The applicant enlisted in the Kansas Army National Guard on 5 January 1996. She entered active duty service in the Regular Army on 24 September 1997. In 2002, she was running when she began to feel pressure in her left lower back. Additionally, she noticed minor pain in that same area when sitting, both of which prompted her to seek medical treatment. She was diagnosed with a herniated disc. She underwent surgery to release the pressure on the nerve. From 2003 to 2010, she continued to serve symptom free. b. In 2010, she again began experiencing back pain similar to what she had experienced in 2002, this time on the right side. She tried physical therapy, but this was unsuccessful. Since the first surgery had worked so well, she elected to have the same surgery on the other side of her back. In 2011, she became a recruiter. In late 2012 and early 2013, she began experiencing pain in the entirety of her back. She pursued various alternative therapies, including spinal injections, chiropractic, and physical therapy, all without any success. In 2013, she opted to undergo an additional spinal procedure with a much more extensive post-operative recovery phase than previously imposed. In November 2013, she returned to duty. c. In July 2014, her condition was brought before a medical evaluation board (MEB) for initial review. The MEB determined her condition did not meet medical retention standards. More specifically, the MEB noted "the possibility of stressors and rigors of prolonged and sustained duty in harsh conditions continue to present unacceptable risk." The applicant appealed this determination, presenting affidavits from several physicians, as well as various enclosures from the Department of Veterans Affairs Compensation and Pension evaluation, indicating the "level of radiculopathy is considered mild" and she "has full ROM [range of motion]." Ultimately, the clinician who reviewed the imaging studies indicated the applicant's thoracolumbar spine condition has no impact on her ability to work. In spite of this overwhelming evidence, her case was still referred to a physical evaluation board (PEB) for a determination regarding her fitness for continued service. d. In October 2014, a PEB found her unfit to continue in service despite overwhelming evidence to the contrary, including a video recording of her performing different cross-fit activities, a demonstration showing her moving a 40-pound rucksack across a field for a distance of at least 100 yards while wearing protective gear, statements from her civilian providers that her return to full duty without restriction was appropriate based upon the level of success and recovery from the procedure in question, and various letters of support from members of her command and co-workers. e. On 2 December 2015, a request for reconsideration was submitted to the PEB, requesting reversal of the board's decision and finding the applicant's back issue was not disqualifying. Her request for reconsideration was denied in January 2015. In February 2015, she submitted a request for continuation on active duty (COAD). Her request for COAD was denied. f. Prior to her date of separation from active duty, she reached 18 years of active duty service and was entitled to sanctuary protection. In May 2015, she submitted a request to remain on active duty to obtain 20 years of active Federal service for retirement. On 11 May 2015, her request was approved by her battalion and brigade commanders. Ultimately, she was denied continued service and was discharged on 20 May 2015. g. The findings of the MEB/PEB that the applicant was unfit for continued service constitute both material error and material injustice. h. Failure to grant the applicant the required sanctuary protections constitutes a material error/material injustice. i. The basis for the PEB decision of unfitness for duty was clearly unsupported by the evidence presented and ultimately represented an arbitrary and capricious application of Army Regulation 40-501 (Standards of Medical Fitness). All the evidence shows this to be true. The applicant presented irrefutable documentary evidence in the form of video recordings showing her capability to meet necessary Army retention standards. Her surgeon, a nationally renowned expert in the field of spinal surgery and neurosurgical consultant to the Denver Broncos football team who has performed over 3,000 of these surgeries, indicated the applicant met the standards for retention and had little to no possibility of a re-injury. He even presented the board with independent research supporting his position. Overall, the applicant has a long and distinguished 18-year career, dedicating her life to serving her country. Based on all of the above, her separation without sanctuary protections clearly and undeniably constitutes material error and material injustice. 3. Counsel provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * discharge orders * enlistment documents * memoranda, dated 19 November 2014 and 8 January 2015 and medical records * DA Form 199-1 (Formal PEB Proceedings) * undated request for COAD * DA Form 7652 (Physical Disability Evaluation System Commanders' Performance and Functional Statement) CONSIDERATION OF EVIDENCE: 1. Having prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army on 24 September 1997. 2. She was promoted to staff sergeant effective 1 October 2004. 3. She served in Iraq from 16 January 2005 to 11 January 2006 and from 7 June 2008 to 13 May 2009. 4. Her MEB proceedings and informal PEB proceedings are not in her available records for review. 5. On 12 September 2014, she submitted a request for COAD. At that time, she had completed 17 years, 4 months, and 12 days of creditable active service. She provided an undated endorsement from her commanding officer for her request. 6. On 5 November 2014, a formal PEB found her physically unfit due to degenerative disc disease and degenerative joint disease status post left-sided L4-5, L5-S1 transforaminal lumbar interbody fusion (spinal fusion); two prior L5-S1 laminectomy/discectomies; and mild sacroiliac joint arthritis. 7. Her formal PEB proceedings note the following regarding the unfitting diagnosis: a. At the formal hearing, counsel requested the applicant be found fit for degenerative disc disease and degenerative joint disease status post left-sided L4-5, L5-S1 transforaminal lumbar interbody fusion; two prior L5-S1 laminectomy/discectomies; mild sacroiliac joint arthritis (MEB diagnosis number 1); and intervertebral disc syndrome with left-sided sciatic radiculopathy (MEB diagnosis number 2). b. Her company commander testified that he had known the applicant for more than a year and she had recovered from her surgery, could perform her duties as a recruiter, and he had no concerns as a result of her condition. He found the applicant to be a better recruiter than most of her peers, in the top 5 of 30 recruiters. c. The applicant testified that she developed a herniated disc in 2003. She had successful back surgery, but had a recurrence of a herniated disc within a year, and had back surgery again in 2004. She recovered well and resumed her routine physical activities. She had no difficulty with her back until several years later, requiring another surgery in 2013. She had a protracted convalescence but now feels well and her radiculopathy is resolved. The electromyography (EMG) report provided is normal; therefore, her MEB diagnosis number 2 was moved from an unfitting condition to a medically acceptable condition. She denied any problems as a result of the 2013 surgery and stated she was able to perform all of her duties without difficulty. She did not see any problems in being deployed in her current military occupational specialty or secondary military occupational specialty. d. The formal PEB reviewed the applicant's video recordings showing her performing different cross-fit activities, statements from her civilian providers, and letters of support, but did not agree with the applicant that her condition was not unfitting. The evidence the condition was unfitting included: (1) the condition was found not to meet retention standards by the MEB; (2) the description in the narrative summary and MEB appeal response are corroborative as to it being unfitting; (3) her current physical profile rating of "3" in the lower extremities factor, indicating several functional activity limitations and non-deployability; and (4) she has had three back surgeries in the last 10 years and another back injury (as previously noted in the MEB appeal response) would have a "crippling" effect and must be avoided, as is possible only away from the rigors of the military service. Areas of fusion in the back, as they do not have flexibility, cause more stress on the other parts of the back, leading to future risk. Based on previous documentation and new information, the formal PEB agreed with and sustained the findings of the informal PEB, that the applicant's back condition was unfitting. e. With regard to MEB diagnosis number 2 (intervertebral disc syndrome with left-sided sciatic radiculopathy), at the formal hearing counsel requested the applicant be found fit for degenerative disc disease and degenerative joint disease status post left-sided L4-5, L5-S1 transforaminal lumbar interbody fusion; two prior L5-S1 laminectomy/discectomies; mild sacroiliac joint arthritis (MEB diagnosis number 1); and intervertebral disc syndrome with left-sided sciatic radiculopathy. The board did not agree that MEB diagnosis number 1 was not unfitting. However, as the applicant now had a normal EMG, MEB diagnosis number 2 was determined not to be unfitting. f. The formal PEB found the following conditions not to be unfitting and therefore not ratable: * other specified anxiety disorder (MEB diagnosis number 3) * migraine including migraine variants (MEB diagnosis number 4) * brain tumor (pituitary microadenoma) (MEB diagnosis number 5) * hypertension (MEB diagnosis number 6) * exophthalmos of the right eye and slight on the left (MEB diagnosis number 7) * dry eyes (MEB diagnosis number 8) * left hip strain (MEB diagnosis number 9) * bilateral stress fractures of the tibia (MEB diagnosis number 10) * status post partial hysterectomy secondary to uterine fibroids (MEB diagnosis number 11) * incontinence (MEB diagnosis number 12) * constipation (MEB diagnosis number 13) * hemorrhoids (MEB diagnosis number 14) * psoriasis (MEB diagnosis number 15) * lipoma of left breast (MEB diagnosis number 16) * allergic rhinitis (MEB diagnosis number 17) * tinnitus (MEB diagnosis number 18) * scars residual from surgical procedures for back condition (MEB diagnosis number 19) 8. The formal PEB recommended the applicant's separation from the service with severance pay (10 percent). On 20 November 2014, the applicant did not concur with the PEB findings and submitted a written appeal. In summary, she stated she could perform all her military duties, deployed or not deployed. She would like to complete 2 1/2 more years of service and retire with 20 years of service. 9. U.S. Army Physical Disability Agency (USAPDA) memorandum, dated 8 January 2015, subject: Reference Addendum to Appeal Due to Delay of Evidence in the Matter of (Applicant), advised her counsel that the USAPDA carefully considered the arguments presented (the Board find the applicant's degenerative disc disease and degenerative joint disease as a fitting condition and the new medical evidence, dated 2 January 2015, from a neurosurgeon opining the applicant was cleared without restriction for any physical work), the applicant's personal statement, and reviewed the applicant's case file. The memorandum also stated: a. They noted the applicant appealed the MEB finding that her degenerative disc disease and degenerative joint disease (back condition) did not meet medical retention standards and the MEB reaffirmed its finding upon that appeal. b. They noted in counsel's appeal of the formal PEB finding, counsel presented command and performance data that the applicant could still perform her duties, common tasks, and Army Physical Fitness Tests successfully. The PEB, upon receipt of the applicant's appeal, returned the case with all the new evidence to the MEB for reconsideration. The MEB responded on 16 December 2014 after its review of the new evidence that its finding that the applicant's back condition does not meet medical retention standards remains unchanged as the danger to her for future injury was too great. The applicant's MEB findings and physical profile rating have not changed. c. Based on their review of the available evidence, the USAPDA agrees with the formal PEB decision based on the MEB findings. The MEB has reviewed the case and the medical records extensively and, notwithstanding the applicant's ability to perform common tasks and the Army Physical Fitness Test, the MEB still found the condition did not meet medical retention standards. The MEB is the official medical opinion of the U.S. Army and, in their opinion, the possible stressors and rigors of prolonged and sustained duty in harsh conditions continue to present an unacceptable risk to the applicant and a burden on the unit to protect her. d. The applicant's case was adjudicated by the PEB in accordance with rules that govern the Physical Disability Evaluation System in making its determination. 10. On 23 January 2015, the U.S. Army Human Resources Command (HRC) denied her request for COAD. She was advised that Soldiers who have been determined unfit by a Disability Evaluation System may be approved for COAD as an exception to policy under the provisions of Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). The primary objective of the COAD Program is to conserve manpower by effective use of needed skills or experience. HRC determined her request did not meet the primary objective of the COAD Program. At that time, she had completed 17 years, 8 months, and 23 days of creditable active service. 11. Installation Management Command and Headquarters, U.S. Army Garrison, Fort Carson, Orders 034-0020, dated 3 February 2015, discharged her effective 28 April 2015 with a disability rating of 10 percent. The additional instructions stated she was authorized disability severance pay in pay grade E-6 based on 17 years, 9 months, and 26 days of service as computed under the provisions of Title 10, U.S. Code, section 1208. 12. Installation Management Command and Headquarters, U.S. Army Garrison, Fort Carson, Orders 107-0001, dated 17 April 2015, amended Orders 034-0020, by changing her discharge date to 25 May 2015 instead of 28 April 2015. She was authorized disability severance pay in pay grade E-6 based on 18 years, 0 months, and 25 days of service as computed under the provisions of Title 10, U.S. Code, section 1208. 13. She completed 18 years of creditable service effective 1 May 2015. 14. On 25 May 2015, she was honorably discharged by reason of disability with severance pay, non-combat (enhanced). Her DD Form 214 shows she completed 18 years and 25 days of creditable active service. 15. An advisory opinion was rendered by the Army Review Boards Agency Senior Medical Advisor, dated 1 June 2017, wherein he stated: a. The available records reasonably support a boardable behavioral health condition (other specified anxiety disorder) existed at the time of the applicant's military service. This condition met retention standards. b. She did not meet medical retention standards for degenerative disc disease and degenerative joint disease status post left-sided L4-5, L5-S1 transforaminal lumbar interbody fusion; two prior L5-S1 laminectomy/ discectomies; and mild sacroiliac joint arthritis; as well as intervertebral disc syndrome with left-sided sciatic radiculopathy (per the MEB findings, did not meet retention standards but was found fit for duty by a formal PEB). c. She met medical retention standards for other specified anxiety disorder, migraine (including migraine variants), brain tumor (pituitary microadenoma), hypertension, exophthalmos of the right eye and slight of the left, dry eyes, left hip strain, bilateral stress fractures of the tibia, status post partial hysterectomy secondary to uterine fibroids, incontinence, constipation, hemorrhoids, psoriasis, lipoma of the left breast, allergic rhinitis, tinnitus, and scars residual from surgical procedures for her back condition. d. Her medical conditions were duly considered during medical separation processing. In addition to the basis for unfitness as outlined in the DA Form 199-1, the tenets of Army Regulation 40-501, paragraph 3-41e (Miscellaneous Condition and Defects), may be applied. Conditions and defects not mentioned elsewhere in this chapter are cause for referral to an MEB if the conditions (individually or in combination) result in interference with satisfactory performance of duty as substantiated by the individual's commander or supervisor. Any medical condition, injury, or defect (individually or in combination) that prevents the Soldier from performing any of the functional activities listed under item number 5 of a DA Form 3349 (Physical Profile) (i.e., permanent physical profile rating of "3" in the lower extremities factor). The ability to complete a functional task by itself does not necessarily equate to meeting retention standards and/or fitness for duty. As noted by the applicant and counsel in their supporting brief, she clearly demonstrated the ability to complete a number of warrior tasks as a demonstration of fitness. The ability to do so under non-hazardous, non-combat, and/or non-austere conditions does not translate in the ability or resilience necessary to perform them during the course of a 6 to 12-month deployment (daily wear of individual body armor, carrying a weapon, riding in tactical vehicles, carrying a rucksack, and/or transporting personal gear, etc.). The individual's health or well-being would be compromised if the individual were to remain in military service. In view of the Soldier's condition, her retention in military service would prejudice the best interests of the Government (e.g., a carrier of communicable disease who poses a health threat to others). Questionable cases, including those involving latent impairment, will be referred to PEBs. e. 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 applicant's discharge in this case. 16. A copy of the advisory opinion was provided to the applicant for comment and/or rebuttal. She did not respond. REFERENCES: 1. Army Regulation 635-40 prescribes Army policy and responsibilities for the disability evaluation and disposition of Soldiers who may be unfit to perform their military duties due to physical disability. a. Paragraph 4-27 (Final Disposition by USAPDA) provides that separation with disability severance pay is directed under Title 10, U.S. Code, section 1203, or Title 10, U.S. Code, section 1206, as applicable, when the Soldier is unfit due to a compensable physical disability determined under the standards of this regulation, and the Soldier has less than 20 years of service computed under Title 10, U.S. Code, section 1208, and the Soldier's combined disability rating is less than 30 percent, to include a rating of 0 percent. b. Chapter 6 prescribes the criteria for Soldiers for COAD subsequent to being found unfit after completion of the duty-related Disability Evaluation System process. The purpose of this exception to policy is to conserve manpower by effective use of needed skills or experience in a limited duty status. A Soldier who has been found unfit by a PEB for further military service has no inherent or vested right to continuation. Requests will be approved based on the needs of the Army. Requests will not be approved solely to increase the Soldier's separation or retirement benefits. 2. Army Regulation 635-200 (Active Duty Enlisted Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Paragraph 1-19f states that except when discharged pursuant to the approved sentence of a court-martial or for physical disability, any Soldier who has completed 18 or more years of active Federal service will not be involuntarily discharged or released from active duty without approval at Headquarters, Department of the Army, level. 3. Title 10, U.S. Code, section 3914 (20 to 30 Years: Enlisted Members), states an enlisted member of the Army who has at least 20 but less than 30 years of service computed under section 3925 of this title may, upon request, be retired. 4. Title 10, U.S. Code, section 1203 (Regulars and Members on Active Duty for More than 30 Days: Separation), states that upon a determination by the Secretary concerned that a member is unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability incurred while entitled to basic pay, the member may be separated from the member's Armed Force, with severance pay computed under section 1212 of this title, if the Secretary also makes the determination that: (1) the member has less than 20 years of service computed under section 1208 of this title; (2) the disability is not the result of the member’s intentional misconduct or willful neglect and was not incurred during a period of unauthorized absence; (3) based upon accepted medical principles, the disability is or may be of a permanent nature; and (4) the disability is less than 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination and the disability was the proximate result of performing active duty, incurred in the line of duty in time of war or national emergency, or incurred in the line of duty after 4 September 1978. 5. Sanctuary is a term used to describe the period in a Soldier's career where the Soldier has enough creditable service to be within 2 years of retirement eligibility, whether Active or Reserve, officer or enlisted. DISCUSSION: 1. Although counsel contends the applicant was fit for duty, a formal PEB found her physically unfit due to degenerative disc disease and degenerative joint disease status post left-sided L4-5, L5-S1 transforaminal lumbar interbody fusion; two prior L5-S1 laminectomy/discectomies; and mild sacroiliac joint arthritis. 2. The formal PEB determined her condition was unfitting for the following reasons: (1) the condition was found not to meet retention standards by the MEB; (2) the description in the narrative summary and MEB appeal response are corroborative as to it being unfitting; (3) her current permanent physical profile rating of "3" in the lower extremities factor, several functional activity limitations, and non-deployability; and (4) she has had three back surgeries in the last 10 years and another back injury (as previously noted in the MEB appeal response) would have a "crippling" effect and must be avoided, as is possible only away from the rigors of military service. Areas of fusion in the back, as they do not have flexibility, cause more stress on the other parts of the back, leading to future risk. Based on previous documentation and new information, the PEB agreed with and sustained the findings of the informal board, that the applicant's back condition was unfitting. 3. The evidence of record shows the applicant requested COAD on 12 September 2014. At that time she had completed 17 years, 4 months, and 12 days of creditable active service. She was not within 2 years of retirement eligibility (18 years but less than 20 years). 4. HRC denied her request for COAD on 23 January 2015. She was advised that Soldiers who have been determined unfit by a Disability Evaluation System may be approved for COAD as an exception to policy under the provisions of Army Regulation 635-40. The primary objective of the COAD Program is to conserve manpower by effective use of needed skills or experience. HRC determined her request did not meet the primary objective of the COAD Program. At that time, she had completed 17 years, 8 months, and 23 days of creditable active service. 5. Discharge orders were issued on 3 February 2015 with an effective date of 28 April 2015. The additional instructions show she was assigned a disability rating of 10 percent and stated she was authorized disability severance pay in pay grade E-6 based on 17 years, 9 months, and 26 days of service as computed under the provisions of Title 10, U.S. Code, section 1208. 6. Her discharge orders were amended on 17 April 2015, changing her discharge date to 25 May 2015 and showing she was authorized disability severance pay in pay grade E-6 based on 18 years, 0 months, and 25 days of service as computed under the provisions of Title 10, U.S. Code, section 1208. Her records are void of documentation supporting the change in her date of discharge. 7. She was honorably discharged by reason of disability with severance pay, non-combat (enhanced), after completing 18 years and 25 days of creditable active service. 8. Counsel contends the applicant reached 18 years of active duty service prior to her date of separation from active duty and was entitled to sanctuary protection. 9. Separation with disability severance pay is directed under Title 10, U.S. Code, section 1203, when the Soldier is unfit due to a compensable physical disability and the Soldier has less than 20 years of service computed under Title 10, U.S. Code, section 1208, and the Soldier's combined disability rating is less than 30 percent, to include a rating of 0 percent. 10. Army Regulation 635-40 provides that a Soldier who has been found medically unfit by a PEB for further military service has no inherent or vested right to continuation. The primary objective of the COAD Program is to conserve manpower by effective use of needed skills or experience. HRC determined her request did not meet the primary objective of the COAD Program. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170007808 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170007808 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2