IN THE CASE OF:  BOARD DATE:  27 April 2021 DOCKET NUMBER:  AR20200003356 


APPLICANT REQUESTS:  The applicant requests to change his honorable discharge to a medical retirement, and a personal Board appearance.   

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DD Form 214 (Certificate of Release or Discharge from Active Duty)

.Department of Veterans Affairs (VA) letter of summary of benefits

.VA Compensation and Pension examination documents



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states he believes he should have been medically retired instead ofexpiration term of service (ETS) discharge.  A compensation and pension exam afterseveral years of fighting for VA disability shows that there was an error in his dischargeand he should have been medically boarded instead of his ETS discharge.

3.The applicant enlisted in U.S. Army Reserve Delayed Entry/Enlistment Program on20 March 2003.  On 21 July 2003, the applicant enlisted in the Regular Army for aperiod of 6 years.  He completed training requirements and was awarded his militaryoccupational specialty (MOS).

4.He served in Iraq from 31 October 2004 to 16 October 2005 and Afghanistan from20 January 2007 to 24 January 2008.

5.On 19 November 2009, the applicant was issued a permanent Physical Profile (DAForm 3349) for “seizure d/o”.  His physical profile rating was “1” in all categories andstated, in pertinent part, “This P1 profile supersedes the P3 profile currently in SM(service-member’s) record.  P3 profile is rescinded due to Soldier meeting retentioncriteria outlined in Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness)”.

6.On 25 January 2010, Installation Management Command, Fort Bragg, NC issuedOrders Number 025-0288 assigning the applicant to the Fort Bragg, NC transition pointon 26 January 2010 and releasing the applicant from active duty on 23 April 2010.  Hewas further assigned to the U.S. Army Reserve Control Group (Reinforcement).  Histerminal date of Reserve obligation ended on 19 March 2011.

7.On 2 February 2010, a Report of Medical Examination for separation shows theapplicant’s clinical evaluation was indicated as “normal” for neurologic and psychiatric.The examination further indicated he was qualified for service/separation.

8.His record contained an Enlisted Record Brief dated 25 February 2010 that showshis PULHES listed as “111111”.  PULHES is an acronym for physical capacity/stamina(P), upper extremities (U), lower extremities (L), hearing and ears (H), eyes (E), andpsychiatric (S).  PULHES includes numbers from one to four.  An individual having anumerical designation of “1” under all factors is considered to possess a high level ofmedical fitness.  A number one in all categories means that Soldiers fully qualify and willrequire no medical waivers.

9.On 26 February 2010, an Enlistment/Reenlistment Document shows he enlisted inthe Virginia Army National Guard.

10.On 1 April 2010, the Installation Management Command, Fort Bragg, NC issuedOrders Number 091-0254 amending Orders Number 025-0288 to read “Assigned to:HHC SP TRPS 1/29 BCT, (WX56T0), 1700 Jefferson Davis Highway, Fredericksburg,VA 22401-1178”.

11.On 23 April 2010, the applicant was honorably Released from Active Duty andtransferred to the U.S. Army Reserve Control Group (Reinforcement).  His DD Form214 also shows he completed his required active service obligation and completed 6years, 9 months, and 3 days of net active service this period.  His reentry (RE) codewas listed as “1”.  RE-1 applies to Soldiers completing their term of active service whoare considered qualified to reenter the U.S. Army and they are qualified for enlistment ifall other criteria are met.

12.His available service records from this period do not show:

.he suffered from a medical condition, physical or mental, that affected his abilityto perform the duties required by his MOS and/or grade or rendered him unfit formilitary service

.he was diagnosed with a medical condition that warranted his entry into the ArmyPhysical Disability Evaluation System (PDES)


.he was diagnosed with a condition that failed retention standards and/or wasunfitting

.he was determined to be unfit by a medical board



13.On 28 June 2010, a DD Form 215 (Correction to DD Form 214) amended item 9(Command to Which Transferred) of his DD Form 214 to show “HHC SP TRPS 1/29BCT, (WX56T0), 1700 Jefferson Davis Highway, Fredericksburg, VA 22401-1178”.

14.On 23 April 2011, Orders Number 117-065 and a Report of Separation and Recordof Service (NGB Form 22) honorably discharged the applicant from the Virginia ArmyNational Guard and as a Reserve of the Army.  His NGB Form 22 shows a reenlistmenteligibility code “RE-1”.

15.In support of case, the applicant provided his DD Form 214, Department ofVeterans Affairs letter of summary of benefits showing he has a combined service-connected disability evaluation rating of 80 percent, and a copy of his VA Compensationand Pension examination documents.  The supporting documents will be provided tothe Army Review Boards Agency medical staff for review and consideration.

16.Army Regulation 15–185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy, acting through the Army Board for Correction of Military Records (ABCMR).  Inpertinent part, it states that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The ABCMR will decide cases based on theevidence of record.  It is not an investigative agency.

17.The Army rates only conditions determined to be physically unfitting at the time ofdischarge or separation, which disqualify the Soldier from further military service.   TheArmy 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 formilitary service.  The VA may compensate the individual for loss of civilianemployability.

18.Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensationfor disabilities which were incurred in or aggravated by active military service.However, an award of a VA rating does not establish an error or injustice on the part ofthe Army.

19.Title 38, CFR (Code of Federal Regulation), Part IV is the VA’s schedule for ratingdisabilities.  The VA awards disability ratings to veterans for service-connectedconditions, including those conditions detected after discharge.   As a result, the VA,operating under different policies, may award a disability rating where the Army did notfind the member to be unfit to perform his duties.   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. 

20.In regards to the applicant's request for a personal appearance, Army Regulation15-185, states an applicant is not entitled to a hearing before the Board; however, theBoard or the Director of ABCMR may authorize a personal appearance.

21.MEDICAL REVIEW:

The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), and the Interactive Personnel Electronic Records Management System (iPERMS).  The ARBA Medical Advisor made the following findings and recommendations:   
a.The applicant is applying to the ABCMR requesting in essence a referral to theDisability Evaluation System (DES) and a medical retirement.  He states: 
“I believe l should have been medically retired instead of ETS discharge.  C&P exam after several years of fighting for VA disability shows that there was an error in my discharge and should have been med boarded instead of my ETS.” 
b.The Record of Proceedings details the applicant’s military service and thecircumstances of the case.  His DD 214 shows he entered the regular Army on 21 July 2003 and was honorably discharged on 23 April 2010 after having completed his required active service.  It shows he served in Iraq from 31 October 2004 thru 16 October 2005 and in Afghanistan from 20 January 2007 thru 24 January 2008.  His reentry conde was 1, indicating he was fully qualified for reenlistment. 

c.His Report of Separation and Record of Service (NGB Form 22) shows the formerdrilling Guardsman enlisted in the Army National Guard on 24 April 2010 and received an honorable discharge from the Virginia Army National Guard (VAARNG) on 23 April 2011 under the provisions of paragraph 6-35a of NGR 600-200, Enlisted Personnel Management (31 July 2009): Expiration of term of service.  His reenlistment eligibility code was RE-1. 

d.On his regular Army pre-separation Report of Medical History completed 21January 2010, the applicant noted he was on Lamictal, a medication used for mood and seizure disorders, and listed a history of four seizures; one in April 2008, two in May 
2008, and one in November 2009.  The accompanying Report of Medical Examination completed 2 February 2010 annotates no medical conditions and states the applicant is qualified for separation. 

e.Review of his records in AHLTA show he was evaluated by neurology forseizures.  His studies were normal.  At his 1 October 2008 neurology appointment, the physician diagnosed him with “convulsions as a symptom”, stating in his assessment: 

“While seizures are on the differential, and he should remain on seizure precautions; however, feel that pseudo-seizures are at least as likely especially given the description of non-stereotypical events from his wife.  He also agrees that this could be due to "stress" and that during both occasions, he felt a lot of stress in his life that day (also notes that he asked to be screened for PTSD but his unit PA said that he didn't experience enough stress to have this).  

At this point, will go ahead with UNC plan to wean off of Dilantin; Lamictal is working for his mood and is a good AED {antiepileptic drug} so will keep this.  Will place consult to psychiatry to have his PTSD symptoms addressed.  Will keep on seizure precautions for 6 months (since his last seizure) then lift driving (but no military vehicles).  If he remains convulsion free for 12 months, then his profile could be decreased to P2 but he would need to re-class.” 

f.He had no convulsions or seizure like episodes for the next year.  He was seen byneurology on 4 November 2009: 

25-year-old male AD SM presents for follow up and MEB specialty care consultfor prior diagnosis of seizure-like episodes; and would like an evaluation forrestless leg syndrome.  Regarding his spells, he has not had any additionalconvulsions since May 2008 (please see not from Oct 2008 for details).  Hecontinues to take Lamictal for these spells (and for his ongoing mood disorder).

g.The diagnosis remained convulsions as a symptom and the assessment wassimilar to the one the year prior: 

“It remains unclear what the underlying cause of his prior episodes of convulsions representative.  Please see note written October 2008 for details, however based on description of events and the fact that stress was a major player in the onset of these events; I feel that they're most likely represent non-epileptic seizures/pseudo-seizures.  Regardless, it has been greater than 18 months since his last episode and he is doing well on his current dose of 
Lamictal without side effects (being used for both mood disorder and convulsions).  At this point, he meets retention criteria based on AR 40-501 and would not need a medical board for this condition.  No further workup is required.” 

h.A seizure disorder/epilepsy does not fail medical retention standards per se.Paragraph 3-30i of AR 40-501, Standards of Medical Fitness (14 December 2007), states “In general, epilepsy is disqualifying unless the Soldier can be maintained free of clinical seizures of all types by nontoxic doses of medications.” 

i.The applicant was seen by mental health twice in October 2006 at which time hediagnosed as having adjustment disorder with depressed mood.  His third appointment was to be in November 2006, but he did not return and was not seen again by mental health until May 2008. 

j.There are twelve behavioral health encounters between 21 May 2008 and 12December 2008; two in May, seven in June, and one each in October, November, and December.  The diagnosis after all these encounters was adjustment disorder with disturbance of emotions and conduct. 

k.There is no evidence the applicant had a mental health or other medical conditionwhich would have failed the medical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness prior to discharge from the regular Army; or which prevented his entrance into and service in the Virginia Army National Guard.  Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating in either component.    

l.A VA benefits letter and review of his records in JLV show he has been awardedseveral VA service connected disabilities, including ones for PTSD and seizures.  However, the DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions incurred while in Service; or for compensating conditions which did not contribute to career termination.  These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws.     

m.It is the opinion of the Agency Medical Advisor that a referral of his case to theDisability Evaluation System is not warranted. 


BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board determined it could reach a fair and equitable decision in the case without a personal appearance by the applicant. 

The Board also determined relief was not warranted.  Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s narrative reason for separation. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :XXX XX DENY APPLICATION 


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. 


REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within three 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 three-year statute oflimitations if the ABCMR determines it would be in the interest of justice to do so.
2.Army Regulation 15–185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy, acting through the Army Board for Correction of Military Records (ABCMR).  Inpertinent part, it states that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.  The ABCMR will decide casesbased on the evidence of record.  It is not an investigative agency.

3.Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), setsforth the basic authority for the separation of enlisted personnel.  Chapter 4 pertains toseparation for expiration of service obligation and states a Soldier will be honorablyseparated upon expiration of enlistment or fulfillment of service obligation.

4.Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departmentswith authority to retire or discharge a member if they find the member unfit to performmilitary duties because of physical disability.  The U.S. Army Physical Disability Agencyis responsible for administering the Army physical disability evaluation system andexecutes Secretary of the Army decision-making authority as directed by Congress inchapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40(Physical Evaluation for Retention, Retirement, or Separation).

a.Soldiers are referred to the disability system when they no longer meet medicalretention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB (Medical Evaluation Board); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. 

b.The disability evaluation assessment process involves two distinct stages: theMEB and PEB (Physical Evaluation Board).  The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty.  A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability 
either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 
 
 c.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 
 
5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation 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 office, grade, rank, or rating.  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. 
 
 a.  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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 
 
 b.  Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: 
 
  (1)  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. 
 
  (2)  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 
 
5.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  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 rating of less than 30 percent. 
 
6.  Title 38 U.S. Code 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 
 
7.  Title 38 U.S. Code 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 
 
8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 
 
//NOTHING FOLLOWS//