IN THE CASE OF: BOARD DATE: 16 September 2021 DOCKET NUMBER: AR20210008646 APPLICANT REQUESTS: in effect, a medical retirement and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 294 (Application for Review by the Physical Disability Board of Review) * Self-Authored Statement * VA Form 3288 (Request For and Consent to Release of Information from Individual’s Records) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Two Letters of Support * Department of Veterans Affairs (VA) Rating Decision dated 5 September 2019 * VA Rating Decision dated 22 October 2019 * VA List of Disabilities Letter dated 4 September 2020 * Records Request to VA dated 28 July 2016 * Two VA Records Response Letters * Medical Treatment Records (80 pages) * List of Medications * Extract of Medical Records (16 pages) * MyHealtheVet Records (342 pages) * Education Records for Son FACTS: 1. The applicant did not file within the three-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 he is requesting his hardship discharge be corrected to a medical discharge. a. He was never provided a medical board at separation and he believes if he would have been afforded a medical evaluation, the military would have discovered all of the medical conditions he is still suffering from. He informed a supervisor of his condition after his wife filed a report regarding how he was treating her by isolating her, ignoring her, drinking, and constantly arguing. His supervisor counseled him verbally and told him to be nicer to his “then wife” in order to avoid any further problems down the line. He was threatened with a written report and disciplinary action if she complained again. The applicant then felt too afraid to tell anyone what he was going through and dealt with his stress by drinking, and following his separation, he attempted to take his life twice but failed. b. He believes he was suffering physically, mentally, and was incapacitated at separation. At basic training he fell from a tower and as a result he suffered multiple injuries including heat trauma, post-traumatic stress disorder (PTSD), major depressive disorder (MDD), cervical strain, intervertebral disc syndrome, vertigo, bilateral radiculopathy, bilateral instability, and broken right leg. He also witnessed a fellow Soldier fall from a tower and his wife get badly mangled in a motor vehicle accident. In both situations he froze and felt hopeless. c. The applicant further details in his self-authored statement that he is requesting a medical retirement effective the first day following his separation for all injuries, diseases, mental, and physical conditions that resulted from his service on active duty. He was placed on the temporary disability retired list (TDRL) in 2001. Additionally, his wife’s car accident in 2003 rendered him incapacitated due to additional stressors that affected his medical conditions which included MDD, PTSD, and other stressors. The applicant provides details regarding his accident at basic training and his wife’s accident. d. He states that the military is responsible for the separation of his family and if he had received the proper medical attention, they would still be together. His medical conditions have worsened since his separation and led him to a destructive life. He was unable to hold a job, he was fired from multiple jobs, consistently arguing and fighting with former employers, peer, friends, and family. He drank heavily and attempted taking his life a few times. The applicant also requests benefit entitlements for his dependents and his ex-wife for the pain and suffering they endured as a result of his untreated mental conditions and the motor vehicle accident which resulted from an argument he and wife had. Their daughter was prematurely delivered at 24 weeks and suffered through multiple medical conditions. e. His medical conditions were never addressed until 2018 when the VA assessed and acknowledged his condition and awarded him 100% permanent and total disability rating. He was neglected by the Department of Defense (DoD) and VA as they failed to take responsibility of his family while he was medically incapacitated following his separation. He was never given information regarding benefits he could have secured for himself or his family upon expiration of term of service (ETS). The DoD has not yet acknowledged his conditions. 3. The applicant provides: a. A VA Form 3288, dated 5 September 2020, which authorizes the release of the applicant’s medical information to the VA. b. A DD Form 214 for his active service from 6 February 2001 to 13 June 2003. c. Two letters of support: (1) A letter from Ms. V, dated 1 December 2020, which states she is the applicant’s caregiver and resided with him from 1 February 2019 to 15 October 2020. She cooked, cleaned, and cared for the applicant to assist with his activities of daily living (ADL) in hopes of decreasing his frustration, anger, and depression. She observed him experiencing daily flashbacks, nightmares, and him suffering from PTSD. He is constantly tired throughout the day, only getting 1-3 hours of sleep and napping throughout the day for 30-45 minutes. She further witnessed the applicant suffer from migraines 3 to 4 days out of the week and an adverse reaction to a medication he was taking which required her to take him to the emergency room. The applicant was treated and returned home. (2) A letter from the applicant’s cousin, Mr. J, dated 1 April 2021, which states he helps him frequently with ADLs as a result of his PTSD, stress, and anxiety. The applicant often forgets to take his medications or other important things in his life. He assists the applicant with self-care, dressing, and managing his bills; however, he is limited due to his own personal family responsibilities and is unable to help as frequently as he would like. The applicant is dependent on others for help, but only trusts very few people to help. He and the applicant shared a common interest playing instruments in a band. The applicant has not been the same since returning from the military due to the accident he had from a fall and other terrible stressors. He attempted to help him secure a job; however, those did not last for more than 2-3 months. The applicant drank heavily, would become easily angered, and forget to go to work on time or not at all. He argued and fought with co-workers and superiors which led to him quitting. He was homeless until 2018 when he received medical help through the VA. He has personally observed the applicant pacing in the middle of the night, suffer from panic attacks, and waking up sweaty, scared, and dizzy. d. A VA Rating Decision, dated 5 September 2019, which indicated the applicant filed a claim for increased evaluation that was received on 25 February 2019 and the following decision was made on the claim: * PTSD – increased from 70% to 100% * allergic rhinitis – granted at 0% * radiculopathy, left lower extremity – granted at 10% * intervertebral disc syndrome – 40% continued * left knee strain – 10% continued * radiculopathy, right lower extremity – 10% continued * right knee strain s/p stress fracture of tibia – 10% continued * vertigo – 10% continued * abnormal weight loss – denied * chest pain – denied * heart condition (mitral valve) – denied * gastroesophageal reflux disease (GERD) – denied * hernia – denied * painful or unstable scar – denied * entitlement to unemployability - deferred e. A VA Rating Decision, dated 22 October 2019, which states the entitlement to individual employability was denied and prior disability ratings continued. f. A VA list of current disability conditions, dated 4 September 2020, with assigned ratings: * chronic sinusitis – 50% * intervertebral disc syndrome – 40% * cervical strain – 30% * pseudo-folliculitis barbae – 30% * instability right knee – 20% * PTSD with MDD, severe – 100% * left knee strain – 10% * vertigo – 10% * tinnitus – 10% * painful scar – 10% * radiculopathy, right lower extremity – 10% * radiculopathy, left lower extremity – 10% * right lateral back scar – 10% * instability left knee – 10% * right knee strain s/p stress fracture of tibia – 10% * allergic rhinitis – 0% g. A VA records request from the applicant, dated 28 July 2016, which indicated he desired for his medical records to be sent to his home address, which he provided. h. Two VA letters, which notified the applicant they were responding to his request for treatment records and subsequently, provided all his service treatment records in response to his request dated 29 July 2016. i. A copy of the applicant’s full medical treatment record (80 pages) from his time in service. j. A list of medications and remaining refills prescribed to the applicant. k. An extract of medical records (16 pages) wherein the applicant annotated on the documents numerous health conditions he has struggled with, specifically PTSD, challenges with a brace, and migraine headaches. l. MyHealtheVet records (342 pages) for treatment received from the VA from approximately 3 May 2019 to 3 May 2021. m. Education records for his son, which outline an individualized education program to meet his special needs listed as “other health impaired.” 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 6 February 2001. b. The service record is void of the facts and circumstances that led to the applicant’s discharge. c. Orders 150-0002, dated 30 May 2003, discharged the applicant from active duty with an effective date of 13 June 2003. d. He was honorably discharged from active duty on 13 June 2003. His DD Form 214 shows he completed 2 years, 4 months, and 8 days of active service with no foreign service and no lost time. He was assigned separation code “KDB” and the narrative reason for separation was “Hardship.” e. He subsequently enlisted in the U.S. Army Reserve (USAR) on 15 September 2009. f. A DD Form 2808 (Report of Medical Examination), dated 11 September 2009, indicated the purpose of the examination was for enlistment. The applicant was listed in generally good health with no abnormalities listed. Block 74a (Examinee/Applicant) designated the applicant was qualified for service. g. His record contained an email thread, dated 15 September 2009, approving an administrative waiver for the applicant’s enlistment. The comment indicated the applicant was interviewed on 14 September 2009. The applicant was required to take care of his wife in 2003; however, she was healthy and worked as a nurse. He was committed to serving in the USAR and showed potential for honorable service. h. The service record is void of the facts and circumstances that led to the applicant’s discharge from the USAR. i. Orders 11-250-00030, dated 7 September 2011, reduced the applicant from specialist (SPC) to private (PV1) and further discharged the applicant from the USAR with an under other than honorable conditions characterization of service effective 20 September 2011. 5. The applicant's service record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Disability Evaluation System (DES). Additionally, there is no indication he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 6. By regulation (AR 15-185), 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. 7. By regulation (AR 635-200), initiation of separation may be required because of dependency or hardship when it considered that undue and genuine dependency or hardship exists. 8. By regulation (AR 635-40), the Army disability system 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. The regulation 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. 9. 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. 10. 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. 11. 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. 12. 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, 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 in essence requesting a referral to the Disability Evaluation System (DES). He states: (1) “I am requesting for my "HARDSHIP DISCHARGE" to be corrected to a MEDICAL DISCHARGE" I was never given a Med-Board upon separation from the military. If a Medical Evaluation was done on my ETS date, the military would have discovered all of the medical conditions I suffered with and still currently suffering with. While I was at Fort Leavenworth Base, I informed my supervisor SGT G. what I was going through after my then wife made a report regarding how I mistreated her by isolating her, ignoring, drinking and constantly arguing daily. (2) My supervisor gave me a verbal counseling and told me: 1) To be nicer to my then-wife in other to avoid any further problems down the line. 2) If she complains again, I will get a written report and disciplinary actions will follow. After my supervisor made those comments, I was too afraid to tell anyone what I was going through. So I dealt with all my stress by drinking daily. After separation, I tried to take my life twice but failed.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he the regular Army on 6 February 2001 and was honorably discharged on 13 June 2003 under provisions provided in paragraph 6-3a of AR 635-200, Active Duty Enlisted Administrative Separations (1 November 2001): Dependency. The DD 214 does not list a deployment. c. The applicant entered the USAR on 15 September 2009. Discharge orders published by the 99th Regional Support Command on 7 September 2011 show that effective that day, the applicant was both reduced in rank form specialist (E4) to private (E1) and discharged under provisions provided in paragraph 10-15 of AR 600-8-19. d. There are no encounters in AHLTA. e. His initial pre-entrance Report of Medical History and Report on Medical examination show him to have been in good health, without significant medical history or conditions. f. The only chronic illness listed on the Adult Preventive and Chronic Care Flowsheet (DD Form 2766) in the applicant’s service treatment record (STR) is allergic rhinitis for which he was taking Flonase and Allegra. g. The applicant was seen several times for anterior knee pain / quadriceps tendonitis h. Prior to his reenlistment, a Report of Medical Examination was completed on 11 September 2009 and lists no defects or diagnoses. i. The remaining medical documentation is from the Veterans Hospital Administration from May 2019 thru June 2021. j. Neither of his separation packets nor documents addressing his discharges were submitted with the application or uploaded into iPERMS. k. 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 DES. 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. l. The documents confirm that 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. m. It is the opinion of the ARBA Medical Advisor that a referral of his case to the DES is not warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. The Board found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the applicant's record shows no evidence of any medical conditions that would have failed retention standards prior to his discharges in 2003 or 2011. Based on a preponderance of evidence, the Board determined his discharges were not in error or unjust. 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, 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 6 states initiation of separation may be required because of dependency or hardship when it considered that undue and genuine dependency or hardship exists. Hardship exists when in circumstances not involving death or disability of a member of the enlisted person’s family, his/her separation from service will materially affect the care or support of his/her family by alleviating undue and genuine hardship. 4. Army Regulation 635-5 (Separation Documents), in effect at the time, states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. 5. 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). a. 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 an MEB; 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: the MEB and PEB. 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. 6. 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. 7. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 8. 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. 9. 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. 10. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008646 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1