IN THE CASE OF: BOARD DATE: 21 October 2021 DOCKET NUMBER: AR20210006629 APPLICANT REQUESTS: physical disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge form the Armed Forces of the United States) * self-authored letter * Headquarters, U.S. Army Reserve (USAR) Command Orders 15-XXX-0000X, dated 29 July 20XX * Department of Veterans Affairs (VA) letter, dated 17 November 2020 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He was medically discharged from the USAR in August 2015. During that timeframe, he was instructed to have his packet reviewed by the Medical Evaluation Board (MEB). It was decided that he had a 30 percent disability, with 14 years in the military, so he was discharged due to medical reasons. b. He was under the impression he was receiving a medical retirement since he had 14 years’ service and a minimum of 30 percent disability. This is the impression he got from his S1 (unit personnel office). He later found out it was just a medical discharge rather than a medical retirement. c. He has read details and asked many people that had similar situations and they stated he should have received a retirement, so he would like the Board to review his status and hopefully amend it to medical retirement. 3. The applicant enlisted in the USAR on 14 August 2001. 4. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served on initial active duty for training from 22 August 2001 through 2 March 2002, when he was honorably released back to his USAR unit due to completion of required active service. 5. On 26 May 2006, the applicant was appointed a Reserve commissioned officer of the U.S. Army. 6. A second DD Form 214 shows he again served on active duty for training from 4 June 2006 through 20 October 2006 and upon completion of the Officer Basic Course was honorably released back to his USAR unit. 7. The complete facts and circumstances surrounding the applicant’s medical unfitness are not in his available records for review. The applicant’s available records do not contain documentation pertaining to a MEB and Physical Evaluation Board (PEB) and that documentation has not been provided by the applicant. 8. The applicant’s service records contain DA Form 4187 (Personnel Action), which shows the applicant signed and dated the form on 11 January 2015, indicating he received the PEB decision for his separation from the USAR and requested an honorable discharge from the USAR. 9. His service records also contain an Acknowledgement of Notification of Medical Unfitness for Retention – Election of Options for Not in Line of Duty Conditions, which shows the following: * the applicant acknowledged receipt of Notification of Medical Unfitness for Retention and the options available to him * he understood that counseling was available if he needed further explanation of these options * he elected option C, requesting an honorable discharge from the USAR and would provide the required forms by the suspense date * the applicant signed and dated the form on 28 April 2015 10. The applicant’s DA Form 4187, wherein he requested an honorable discharge from the USAR after receiving his PEB results, was signed by his commander’s authorized representative, recommending approval of his request on 29 April 2015. 11. Headquarters, USAR Command, Orders 15-2XX-0000X, dated 29 July 20XX, honorably discharged the applicant from the USAR effective 28 August 2015, under the provisions of Army Regualtion135-175 (Separation of Officers) based on the applicant’s election for separation. 12. The applicant’s DA Form 5016 (Chronological Statement of Retirement Points) shows he was credited with 13 years and 1 day of qualifying years for retirement. 13. The applicant provided a letter from the VA, dated 17 November 2020, which shows he had one or more service-connected disabilities with a combined rating of 30 percent effective 1 December 2019. 14. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army 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 for military service. The VA may compensate the individual for loss of civilian employability. 15. Title 38, USC, 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 rating does not establish an error or injustice on the part of the Army. 16. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find 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. 17. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests medical retirement. He stated that he was medically discharged from the USAR in August 2015. He stated that he received a MEB packet. He said that he was under the impression that he would be medically retired from the Army because he had 14 years and a minimum of 30% disability from the VA. b. Brief summary of medical and related records. (1) 5 December 2011 Troop Medical Center 15 (Fort Hood). The applicant was scheduled to deploy in 10 days and he presented with a 2-week history of chest tightness associated with palpitations (heart rate increase). (2) 6 December 2011 Cardiology note. He completed testing to include cardiac stress test, ECHO and lab work, and was diagnosed with an arrhythmia. Because of the arrhythmia, he was deemed non-deployable until he had been evaluated by electrophysiology testing. He had a temporary P3 physical profile which temporarily prohibited physical training—no exertional activities that will raise the heart rate. Light indoor activities were fine. (3) 12 Dec 2011 Darnall Army Medical Center. He was released from active duty for newly diagnosed cardiac arrhythmias, dizziness and palpitations. (4) A 31 January 2012 Line of Duty Investigation showed approval for follow up treatment of Paroxysmal Atrial Tachycardia and Atrial Fibrillation only. (5) On 22 January 2013 he received a temporary P3 physical profile and was expected to be fully mission capable by 22 April 2013. The current operative PULHES was 111111. Atrial fibrillation was treated with Flecainide. His P1 profile was changed to P3. At the time, he did not meet retention standards per AR 40-501, paragraph 3-21b. Strenuous physical activity or timed aerobic events were prohibited until he was cleared by a primary care provider. (6) 10 December 2013 Cardiology. He was seen for follow up of atrial fibrillation. He denied chest pain, dizziness, palpitation, syncope and weakness. He was not taking the Flecainide regularly and noted palpitations about 3 days prior. (7) A 28 January 2014 Periodic Health Assessment (PHA) showed that he was being treated for atrial fibrillation but he was still having symptoms and episodes. (8) On 8 February 2014 he was given a permanent P3 physical profile for abnormal heart rhythm. (9) A 8 February 2014 permanent P3 physical profile for abnormal heart rhythm indicated the Atrial Fibrillation condition failed retention standards per AR 40-501, paragraph 3-21.4.b, and prohibited all functional activities and Army Physical Fitness Test events. A MEB was required. (10) A 6 December 2014 PHA found Atrial Fibrillation: On Atenolol 1/2 tab daily, Flecainide, and Ramipril. He was advised: No physical activities, no carrying a gun, no body armor. He was not deployable. The PULHES was 311111. (11) A 31 December 2014 temporary P3 physical profile for severe allergic reaction to unspecified nuts showed the PULHES was 311111. Severe allergic reaction to unspecified nuts the P1 profile was changed to P3. He temporarily did not meet retention standards per AR 40-501, paragraph 3-41a. A MEB had already been started for the arrhythmia, but was not completed. (12) Per a 8 January 2015 Chronological Record of Medical Care note, his MEB packet underwent quality assurance. It was determined that his arrhythmia was diagnosed while he was on orders for less than 30 days. Per quality assurance, his condition was not duty related and he needed to go through a non-duty related PEB. The applicant was informed, and he was considering having an ablation procedure. (13) A 31 March 2015 Chronological Record of Medical Care note shows an “email was sent to Soldier with the Election of Options and Notice of Medical Unfitness memo.” (14) A 5 May 2015 Chronological Record of Medical Care note shows the “Soldier returned his Election of Options Letter with Discharge marked.” (This is congruent with the 29 July 2015 Orders 15-210-00009 indicating that he elected separation under AR 135-175; and the 11 January 2015 DA Form 4187 which showed the applicant requested discharge from military service and approval was recommended. c. The ARBA reviewer searched ePEB and a PEB could not be found for the applicant. The reviewer also could not find active duty orders for the time period when the Atrial Fibrillation condition was diagnosed to confirm how long he had been on orders. The Atrial Fibrillation condition did not meet retention standards because symptoms persisted which interfered with performance of duty despite appropriate treatment in accordance with AR 40-501, chapter 3. Records were incomplete, but based on records available for review, it appears the applicant underwent a non-duty related PEB, because his arrhythmia was determined to be non-duty related. Referral for Army medical discharge processing is not indicated at this time. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board found insufficient evidence indicating the applicant developed a medical condition while on active duty orders of 30 days or more. As such, the Board found the determination that his disabling conditions were not duty related to be correct. Without a favorable duty-related finding, he was only entitled to go before a non-duty related PEB, which is empowered to determine if Soldiers with medical conditions that do not meet retention standards may continue in military service. He did not elect to go before a non-duty related PEB, instead electing discharge from the USAR. Based on a preponderance of evidence, the Board determined the discharge that resulted from the applicant's voluntary election was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X X X 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. 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, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by a Military Occupational Specialty (MOS) Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. 3. Army Regulation 635-40 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. 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. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line of duty (LOD) 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 was incurred in the LOD in a time of war or national emergency or was incurred in the LOD aft4er 14 September 1978. (3) 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. 4. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40 with the following caveats: a. USAR or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed as follows. Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 or discharged from the USAR per Army Regulation135–175 (Separation of Officers) or Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative Separations). They will be transferred to the Retired Reserve only if eligible and if they apply for it. b. Reservists who do not meet medical retention standards may request continuance in an active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reservists with nonduty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with this regulation. c. Reserve Component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Reserve Component Soldiers with nonduty related medical conditions, MEBs are not required and cases are not sent through the PEBLOs (Physical Evaluation Board Liaison Officers) at the military treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USARC Regional Support Command or the U.S. Army Human Resources Command Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. 5. Title 38, U.S. Code, section 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. 6. Title 38, U.S. Code, section 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210006629 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1