IN THE CASE OF: BOARD DATE: 24 August 2021 DOCKET NUMBER: AR20210007004 APPLICANT REQUESTS: Retirement due to physical disability. 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) Summary of Benefits FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. 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: * He received a 100 percent disability rating from the VA due to his combat related disabilities * All his combat related injuries were sustained while serving in a Ranger battalion * He believes the error occurred because his injuries were not listed upon his expiration term of service (ETS) * His combat related injuries kept getting worse * He cannot do basic everyday things due to his injuries * He was involved in numerous airborne jumps, deployments, and high risk missions 3. The applicant enlisted in the Regular Army on 24 September 2003 for a period of three years. His record shows he served in Iraq and Afghanistan. 4. The applicant's Enlisted Record Brief shows his last physical examination took place on 28 March 2006 and that he was assigned a physical profile serial system (PULHES) code of "111211." 5. The applicant was released from active duty and transferred to the U.S. Army Reserve on 23 September 1996 by reason of completion of required active service (ETS). 6. There is no evidence in the applicant's available records indicating he was unable to perform his military duties due to a medical disability. 7. The applicant provided a VA Summary of Benefits showing he was granted service- connected disability compensation, rated 100 percent, for undisclosed medical conditions. 8. 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. 9. 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 rating does not establish an error or injustice on the part of the Army. 10. Title 38, Code of Federal Regulations, Part IV is the VA 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. 11. 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 the Disability Evaluation System. He states: “I am currently 100% combat related disabled through the VA. All of my injuries are combat related sustained while serving in the 2nd Ranger Battalion. I am asking to have my discharge changed to "RETIRED" out of the military rather than "discharged". Again, I have an honorable discharge with 100% combat related disability through the VA.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant signed DD 214 for the period of service under consideration shows the applicant entered the regular Army on 24 September 2003 and was honorably discharged at the completion of his required active service on 23 September 2006 under provisions provided in Chapter 4 of AR 635-200, Active Duty Enlisted Administrative Separations 6 June 2005). c. No medical documentation was submitted with the application. Review of his encounters in AHLTA show he sought clearance to attend a ranger competition on 13 March 2006, 6 months before his discharge. The physician found he met the higher physical standards for rangers and that he was qualified for the competition. “SM presented for Ranger clearance … The Physical itself is reviewed. There is no history of any problems. No limitations or medical problems noted. SM was fit for duty and cleared at that time and would be clear for Ranger School ... No disqualifying factors, PULHES 111111 A. PQ (patient qualified} for Ranger and Bet Ranger Competition.” d. There are only three encounters after the one for ranger competition clearance. All three were with plastic surgery for benign skin lesions. e. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. f. Review of the applicant’s records in JLV show he has been awarded multiple VA service connected disability ratings. However, the DES compensates an individual only for condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. That role and authority is granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. g. It is the opinion of the ARBA Medical Advisor that that a referral to the DES is not warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, a medical review, and regulatory guidance were carefully considered. The Board concurred with the advising official’s recommendation. Evidence of record shows the applicant met retention standards during his period of active duty service. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that show referral to the DES is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :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. 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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 3. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. It provides that a Medical Evaluation Board is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. The regulation states: 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 service. b. 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 presents with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. c. When a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction inforce, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. 4. DA Pamphlet 40-502 (Medical Readiness Procedures) describes the processes and procedures for assessing, documenting, reporting, and administering medical readiness. Paragraph 4-3 (Physical Profile Serial System) states the basis for the physical profile serial system is the function of body systems and their relation to military duties. Profiling providers will use permanent profiles to describe and rate the function of the extremities, sensory organs, physical capacity, and mental health. The permanent physical profile has six functional areas “P–U–L–H–E–S” with four numerical designations used to reflect different levels of functional capacity. The determination of the numerical designation 1, 2, 3, or 4 evaluates the functional capacity of a particular organ or system of the body. The functional areas for consideration are: P – physical capacity or stamina, U – upper extremities, L– lower extremities, H – hearing and ears, E – eyes, S – psychiatric. An individual having a numerical designation of “1” describes a high level of medical fitness, deployable. A physical profile designator of “2” under any factors indicate some medical condition or physical defect that requires some minor functional or activity limitations, deployable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007004 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1