IN THE CASE OF: BOARD DATE: 6 January 2022 DOCKET NUMBER: AR20210010954 APPLICANT REQUESTS: in effect the following corrections – * her medical condition, Barrett’s esophagus, be found by the National Guard Bureau to be in the line of duty * entry into the Army disability evaluation system * a finding she was medically unfit for retention and retired with a disability rating of 30 percent of higher * revocation of her 2017 discharge orders * issuance of disability retirement orders with entitlement to disability retired pay and benefits APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 28 August 2013 * DA Form 2171 (Statement of Medical Examination and Duty Status) dated 7 June 2016 * Memorandum from the National Guard Bureau (NGB) to Joint Force Headquarters, Alabama, dated 15 November 2016, subject: Surgeon Medical Opinion for Applicant * Memorandum from NGB to Joint Force Headquarters, Alabama, dated 21 November 2016, subject: Line of Duty Determination for Applicant * Joint Force Headquarters, Alabama National Guard (ALARNG) Orders 115-509 dated 25 April 2017 * NGB Form 22 (National Guard Report of Separation and Record of Service) discharge date effective 10 May 2017 * NGB Form 23 (Army National Guard (ARNG) Retirement Points History Statement) dated 22 December 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, in effect, she was on active duty for training orders when she became severely ill in 2013. Prior to entering active duty, she was healthy. Personnel at Fort Leonard Wood, Missouri, did not initiate a medical evaluation board (MEB) nor did her unit leaders transfer her to a Warrior Transition Unit for continued medical treatment. She was very sick and her chain of command did not help her and she did not know the procedures for an MEB. She has since reviewed the regulatory guidance and believes she should undergo an MEB. She knows her unit failed her as a Soldier because they did not follow regulatory procedures. She has undergone numerous surgeries. She receives help from the Department of Veterans Affairs (VA). 3. During the process of enlisting in the Army National Guard of the United States (ARNGUS) she underwent an entrance medical examination under Army Regulation 40-501 (Standards of Medical Fitness) on 21 November 2012. She met the medical entrance requirements for enlistment with no noted medical deficiencies. She did not receive a restrictive physical profile and was allowed to fully participate in all training activities. 4. On 25 January 2013 she enlisted in the ARNGUS for a period of 8 years and the Alabama ARNG (ALARNG) concurrently for a 6-year period of inactive service. She was required to spend 2 years in the inactive Army National Guard. 5. On 14 March 2013 the Department of Defense (DoD), Military Entrance Processing Station in Montgomery, AL issued her Orders Number 3073008 ordering her to initial active duty for training (IADT) under Title 10, U.S. Code, section 12301. She was directed to report for Fort Leonard Wood on 29 April 2013 for her IADT including military occupational specialty training as a motor transport operator. Her estimated IADT period was 16 weeks or until she completed training. 6. On 28 April 2013 she entered active duty in an IADT status. As her IADT orders were self-terminating orders, she was released from active duty training on 28 August 2013. At that time, she had completed her required training and schooling meeting the qualifications for motor transport operator. She was issued a DD Form 214 by personnel at Fort Leonard Wood showing she completed her required period of active service totaling 4 months and 1 day. She was issued a DD Form 214 containing the following pertinent data: * Block 23 (Type of Separation) – release from active duty training * Block 24 (Character of Service) – honorable * Block 25 (Separation Authority) – Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4 * Block 28 (Narrative Reason for Separation) – completion of required active service 7. On 9 August 2014 the ALARNG issued her Orders Number 221-507 awarding her military occupational specialty 88M effective 28 August 2013, her date of release from active duty training. 8. On 29 January 2015 she was assigned a duty position in an ALARNG forward support company as a heavy vehicle driver/operator. 9. On 27 April 2017 the ALARNG issued her Orders Number 115-509 honorably discharging her from the ARNGUS and as a reserve of the Army effective 10 May 2017. The reason for her discharge shown on her orders was she did not meet the medical, physical or mental retention standards to remain in the inactive or active ARNGUS. The authority for her discharge is shown as Army Regulation 40-501, chapter 3 and National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-351(8). 10. Accordingly, personnel at ALARNG headquarters issued her NGB Form 22 showing she was honorably discharged on 10 May 2017. She was a private first class/pay grade E-3 at the time of her discharge. She had completed 4 years, 3 months and 16 days of net service in the ALARNG. She had active duty service during the period from 28 April 2013 through 28 August 2013. Her NGB Form 22, block 23 (Authority and Reason) for her discharge was because she was medically unfit for retention under Army Regulation 40-501, chapter 3. 11. In support of her application she provided the following evidence. a. On 7 June 2016 a commissioned officer in the rank and pay grade of major (MAJ)/O-4 signed her DA Form 2173. Her Statement of Medical Examination and Duty Status shows on or about 21 August 2013 at approximately 18:42 hours she sought outpatient treatment. She had a single episode of abdominal pain in her central and lower left quadrant which was diagnosed as constipation. Post active service she was diagnosed with Barrett’s esophagus, which was not incurred in the line of duty. She now claims her abdominal pain and constipation is related to her post active service diagnosis of Barrett’s esophagus. A senior commissioned officer determined a formal line of duty investigation was required. The DA Form 2172 was forwarded to the NGB Surgeon General’s Office. b. On 15 November 2016 a member of the staff at the NGB Surgeon General’s Office provided a written medical opinion for the ALARNG. He restated the applicant’s claim her diagnosis of Barrett’s esophagus occurred while she was on active duty orders. She sought medical treatment for abdominal pain. She was given two glycerin suppositories which provided her with relief from her constipation. She was returned to duty. (She was released from IADT on 28 August 2013 on self-terminating orders.) On or about 9 January 2014 she underwent an esophagogastroduodenoscopy (EGD) by a private physician. The EGD biopsy findings were suggestive of Barrett’s esophagus. On 25 January 2014 she completed her military periodic health assessment and did not report any medical concerns. The medical provider opines the applicant’s treatment for constipation and general inflammation of her esophagus are not related. Her esophageal inflammation should not be considered in the line of duty. He opined that Barrett’s esophagus is a chronic inflammatory condition related to acid reflux in the esophagus and it takes years to develop. He concludes by stating her diagnosis of Barrett’s esophagus existed prior to service and is a natural progress of the inflammatory process precluding a presumption of service aggravation. c. On 21 November 2016 the NGB Chief, Personnel Division prepared a memorandum for the ALARNG leadership informing headquarters personnel that the final line of duty determination pertaining to the applicant was completed. Her medical condition, Barratt’s esophagus, was "not in the line of duty – not due to own misconduct." Under Army Regulation 600-8-4, chapter 2-6, paragraph 6(c), "Line of Duty Determinations must be supported by substantial evidence and by a greater weight of evidence than supports any different conclusion. The evidence contained in the investigation must establish a degree of certainty so that a reasonable person is convinced of the truth or falseness of the fact.'' As previously stated by the NGB Surgeon General’s Office, there is no correlation between her bout of constipation while in an IADT status and her post active service Barrett’s esophagus diagnosis. The memorandum concludes by stating the applicant could appeal her denied line of duty determination with the prescribed time period. d. Headquarters, ALARNG issued her discharge orders, Orders Number 115-509, discharging her from the ARNGUS and as a reserve of the Army effective 10 May 2017 based on a presumption she did not meet the Army medical retention standards. Her NGB Form 22 documents her ALARNG inactive and active service of more than 4 years. e. She provides a copy of her 22 December 2020 NGB Form 23 showing she has 4 years, 3 months and 16 days of creditable service for retired pay. (Retired pay for non-regular service may be awarded at age 60 or earlier, if qualified, provided a Reserve Component Soldier has a minimum of 20 years of qualifying service.) f. The applicant provides a personal rebuttal statement to the finding her diagnosis of Barrett’s esophagus is "Not in the Line of Duty." (1) She states she reviewed her own medical records and she knows she received a diagnosis of a gastro-bacterial infection by military doctors in 2013. She was very weak. She was prescribed medication, determined she was a fall risk, and placed on bed rest. She recalls the emergency room doctor told her she might require surgery. She had difficulty taking the medication and told her noncommissioned officer in charge (NCOIC). When she was released from active duty, she told her ALARNG unit leadership she was sick and that her sickness started when she was on active duty training orders. (2) She continues, stating her Personal Health Assessment should not be used because she was not seen by a medical provider at the time it was prepared. She only answered questions on the form and someone took her vital signs. By her October 2013 unit drill assembly, the Federal government was shut down. Her ALARNG unit had to call an ambulance later in 2014 because she felt faint while at her monthly drill assembly. In turn she sought medical treatment from her own primary care physician. (3) Her primary care physician sent her to specialists including a cardiologist, gastroenterologist, and a pulmonologist who all prescribed her medication. She knows she provided medical evidence to her NCOIC concerning her health after her release from active duty in 2013. She did receive a physical profile. However, her unit refused to help her pay her ambulance and hospitals bills. Her NCOIC told her to take out a private loan to pay her medical bills. He did not show concern for her health and safety. (4) She states, in effect, it was her NCOIC who would not process her medical records to an MEB. She recalls receiving a medical profile that limited her abilities to perform her military occupational duties. In time she was told she would be discharged from the ALARNG, but no MEB met to consider her health conditions. There were administrative delays and though she was told she did not meet medical retention standards she remained in her unit from December 2015 through 10 May 2017. She knowns she was told she would go before an MEB. However, it did not happen. (5) She still requires medication for her medical condition and knows she should be seen by a doctor. The VA does provide her with medical treatment and her 12 medications. She states, in effect, she suffered an injustice when her unit NCOIC did not prepare her or process her record to an MEB. She concludes her personal statement by stating she has many emails and documents to support her contention she should undergo an MEB. (6) After her personal statement, she then identifies the Army regulations used to process Soldiers through the disability evaluation system including the MEB. She outlines the Integrated Disability Evaluation System as being a joint program between the VA and Department of Defense. This system uses a single set of medical examinations and disabling ratings. She continues by directly copying text from Army Regulation 635-40 onto her statement to include the fact some Soldiers are allowed to remain on active duty after undergoing a physical evaluation board. (7) She concludes her statement by stating, in effect, she should be medically retired from the Army. The ALARNG erred when it kicked her out of the National Guard and reserve of the Army. 12. MEDICAL REVIEW: 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). a. The 21 November 2012 Report of Medical Examination (for enlistment) showed a normal physical exam. She was noted to be underweight. She was deemed qualified for service. b. While in service, the applicant was treated for the following significant conditions. (1) Costochondritis. The applicant was performing the Army Physical Fitness Test run and began having chest pain and shortness of breath. The Statement of Medical Examination and Duty Status indicated costochondritis began on 9 February 2013 in Enterprise, AL. There was an in the line of duty finding for the costochondritis condition dated 6 March 2013. The ARBA reviewer did not find duty-limiting profile information for the condition. (2) Barrett's Esophagus. On 21 August 2013 the applicant was seen in the emergency room for left lower abdominal pain that started 15 minutes after eating. It was accompanied by nausea without vomiting or diarrhea. Her abdominal pain went from a 10 down to a 1 after suppositories produced a bowel movement. In the Statement of Medical Examination and Duty Status for Barrett's Esophagus, the applicant claimed that her then recent diagnosis was related to the single episode of abdominal pain on 21 August 2013. On 15 November 2016, the Surgeon General opined that the applicant’s abdominal pain and constipation was unrelated to the Barrett's Esophagus: “Barrett's esophagus is a chronic inflammatory condition related to acid reflux in the esophagus and it takes years to develop. It should be considered [existed prior to service] and the natural progression of the inflammatory process precludes the presumption of service aggravation.” The 21 November 2016 Report of Investigation Line of Duty and Misconduct Status determined the Barrett's esophagus was not in the line of duty. (3) Near Syncopal Episode. She was seen for chest pain with significant air hunger with exercise on 25 February 2014. She had a history of one episode of near syncope (almost fainted). Ejection fraction and exercise stress testing was normal. She had a systolic murmur. She had mild tricuspid valve regurgitation (echocardiogram February 2014). Her symptoms were consistent with mild orthostatic hypotension likely due to insufficient central volume. She was 5’ 5” and weighed 114 pounds (Body Mass Index 18). She was very thin and the cardiologist felt her symptoms would resolve when she gained weight. She had a temporary level 3 physical profile for Bicuspid and Tricuspid Valve Regurgitation dated 12 August 2014, set to expire 10 November 2014. (4) Asthma. On 11 March 2014, she was seen for cough, shortness of breath and wheezing. Symptoms were severe at times and were aggravated by physical activity. Lung testing showed normal spirometry and mild restrictive ventilator defect. It was determined that her respiratory symptoms were due to her severe gastritis and resulting Barrett’s Esophagus condition. She had a temporary level 2 physical profile for Asthma dated 18 June 2014. The DA Form 3349 indicated she was pending medical clearance or medical retention determination point. There were multiple functional activity limitations. c. Pertinent profile history. (1) A temporary level 2 physical profile for Asthma; Barrett’s Esophagus dated 11 February 2015 showed no functional activity limitations. (2) A temporary level 3 physical profile for Asthma; Barrett’s Esophagus dated 1 August 2015 showed that one functional activity was prohibited (deployment). She was pending a Physical Evaluation Board (PEB). (3) 1 August 2015 Chronological Record of Medical Care. She had a history of Barrett's Esophagus; Asthma; and Anemia. It was annotated that she needed a PEB. (4) She had a level 3 permanent physical profile dated 3 September 2015 for Barrett's esophagus due to chronic gastroesophageal reflux disease (GERD), Asthma, and Anemia. She did not meet retention standards of AR 40-501, chapter 3. It was annotated “refer to PEB”; but it was indicated that a MEB was NOT applicable (refer to AR 40-501, chapters 9 and 10). It was indicated that her medical/administrative board status was “pending Non-Duty PEB.” (5) And finally, the record showed a permanent level 3 physical profile for Barrett's Esophagus due to chronic GERD (Bilateral); and Persistent Asthma dated 17 January 2017 with multiple functional activity limitations, to include not being able to wear helmet, body armor, and load bearing equipment. d. Based on available records, the applicant had medical conditions which did not meet medical retention standards per AR 40-501 chapter 3: Barrett's Esophagus due to chronic GERD (Bilateral); and Persistent Asthma. She had permanent level 3 profiles for the conditions. It was determined that the Barrett's Esophagus condition existed prior to service and was not aggravated by service. The Persistent Asthma condition was secondary to the severe gastritis and resultant Barrett's Esophagus condition. Records indicated that she was to undergo a non-duty related PEB. A search in ePEB did not reveal that she had completed a PEB. Soldiers do have the option to opt out of a non-duty related PEB. The ARBA reviewer did not find documentation that she had opted out. Recommend referral for non-duty related PEB for Barrett's Esophagus due to chronic GERD (Bilateral); and Persistent Asthma. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found partial relief is warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor and determined the applicant's records should be referred to a non-duty related PEB to review the conditions for which she had been assigned a permanent level 3 physical profile. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring her records to a non-duty related PEB to review the conditions for which she had been assigned a permanent level 3 physical profile. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or an injustice. The ABCMR’s jurisdiction under Title 10, U.S. Code, section 1552 extends to any military record of the Department of the Army. In certain cases, it can consider records of ARNGUS Soldiers or former Soldiers. The ABCMR begins consideration of each application with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Department of Defense Instruction (DoDI) Number 1241.01, subject: Reserve Component (RC) Line of Duty Determinations for Medical and Dental Treatments and Incapacitation Pay Entitlements, dated 19 April 2016. It is DoD policy that an RC Service member is entitled to medical and dental treatment for an injury, illness, or disease that was incurred or aggravated while in a qualified duty status and that is not the result of gross negligence or misconduct. A determination that establishes a covered condition will be referred to in this instruction as an "in LOD [line of duty] determination." An "in LOD determination" will establish eligibility for appropriate medical and dental treatment. An RC Service member will receive required emergency medical and dental treatment while serving in a qualified duty status. If it is subsequently determined that the RC Service member was not entitled to emergency medical and dental treatment in accordance with Titled 10, U.S. Code, section 1074a because it did not involve a covered condition, financial adjustments will be made so that the costs of the emergency medical care are paid by the member, the member’s health insurance plan, or any other third party payers. 3. 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. This is the process for Soldiers who are on active duty orders or under mobilization orders, if not a member of the Regular Army. 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. RC 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 U.S. Army Reserve Command, 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. Army Regulation 135-178 (Enlisted Administrative Separations), establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the ARNG and the USAR. a. Chapter 15 (Separation for Other Reasons) includes medical unfitness for retention as a reason for separation. It states discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention by reason of medical unfitness per Army Regulation 40-501 unless the Soldier requests and is afforded the following: * granted a waiver under Army Regulation 40-501, as applicable * determined fit for duty under a non-duty related PEB fitness determination under the provisions of Army Regulation 635-40 * eligible for transfer to the Retired Reserve b. Soldiers who do not meet the medical fitness standards for retention due to a condition incurred while on active duty, any type of active duty training, or inactive duty training, will be processed as specified in Army Regulation 635-40. if otherwise qualified. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes 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. It implements the requirements of Title 10, U.S. Code, chapter 61; Department of Defense Instructions (DoDI) 1332.18 (Disability Evaluation System (DES)) and; DoD Manuel 1332.18 (DES Volumes 1 through 3). a. The DES compensates disabilities when they cause or contribute to career termination. Servicemembers who are pending retirement at the time they are referred for disability evaluation are presumed fit for military Service. b. The Director, Army National Guard Bureau on behalf of the Chief, National Guard Bureau will ensure that eligible Soldiers are referred for evaluation by the DES in a timely manner and in accordance with this regulation. d. The Surgeon General of the Army will establish and interpret medical standards for Soldiers of all components. e. The Commanding General, USAPDA will serve as the appellate authority for formal or informal PEB proceedings. The commanding general will make the final decision for the Secretary of the Amy concerning a Soldier’s fitness for duty. Then accomplish final administrative actions to include authorizing installations (or State ARNG Headquarters) to issue applicable orders. f. The Legacy DES process includes the Reserve Component non-duty related referral process. No disability ratings are assigned for non-duty related cases. g. The evidentiary standards for determining unfitness because of physical disability includes fact finding, preponderance of evidence, referral following an illness or injury referral for a chronic impairment, and a cause and effect relationship. h. The Reserve Component non-duty related disability process is established by policy. It affords Reserve Component Soldiers not on call to active duty of more than 30 days and who are pending separation by the Reserve Component for non-duty related medical conditions to enter the DES for a determination of fitness and whether the condition is duty-related. A line of duty investigation resulting in a finding of not in the line of duty is not required when it is clear that the disqualifying disability is non-duty related. (1) Except for the circumstances listed below, referral to the Reserve Component non-duty related process is upon the request of the Soldier. If the Soldier does not request referral, they are subject to separation for medical disqualification under Reserve Component regulations. (2) An MEB is not required to establish that the Soldier does not meet medical retention standards. However, the medical documentation must be sufficient for the PEB to adjudicate fitness. (3) The PEB will issue its decision on fitness using the applicable DA Form 199, DA Form 199–1, or DA Form 199–2. (4) Medical documentation must provide a clear and adequate description of the medical condition(s) that cause the Soldier not to meet medical retention standards. Cases received by the PEB in which the medical evaluation is inadequate for a determination of fitness by the PEB will be returned to the referring organization with a memorandum documenting the insufficiency. (5) The Reserve Component is responsible for counseling its Soldiers on their right to a PEB. Counseling will also include advising the Soldier that they may consult with an attorney from the Office of Special Counsel at no cost to the Soldier. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010954 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1