IN THE CASE OF: BOARD DATE: 27 October 2021 DOCKET NUMBER: AR20210011050 APPLICANT REQUESTS: a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 7652 (Disability Evaluation System (DES) Commander’s Performance and Functional Statement) * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) * Request for Continuation on Active Duty (COAD) memorandum * DA Form 4187 (Personnel Action) * COAD Packet * COAD email correspondence FACTS: 1. The applicant states: a. He was entered into the Integrated Disability Evaluation System (IDES) on 16 January 2019, for spine issues. The PEB found him physically unfit and recommend a rating 50%, and his disposition as permanent disability retirement. He spoke with his PEB Liaison Officer about his options. Since he only required 1 year, 3 months, and 11 days to hit his 20-year retirement, he was a good candidate to complete a COAD packet, and if approved, this would allow him to complete his 20 years and be discharged upon completion of the time. His COAD packet was approved by The Adjutant General of New York in October of 2019. b. When it came time to begin out-processing towards the end of the COAD period, he was under the impression this will still be a retirement with medical status attached since the MEB found him unfit for duty. This was not the case. In consulting various sources, to include his Human Resource Noncommissioned Officer, by completing the COAD packet, he unknowingly and inadvertently removed himself from the IDES. This was not clear to him. Had he known by completing the COAD packet that he would basically be canceling his Army rating, compensation, and benefits, he would have forgone the COAD packet and been discharged upon completion of the IDES process. c. For this reason, he is requesting consideration to nullify the COAD, and reinstate the MEB findings that allow him to be medically discharged instead of the COAD non- regular retirement. He has supplied email correspondence to outline some of the conversation surrounding this request. 2. The applicant provides his: * DA Form 7652 (Disability Evaluation System (DES) Commander’s Performance and Functional Statement) * DA Form 199, dated 23 Aug 2019 * Request for COAD memorandum, dated 17 September 2019 * DA Form 4187, dated 27 September 2019 * COAD Packet, dated 30 September 2019 * COAD email correspondence, dated between October 2019 and November 2020, pertaining to him returning to the IDES for a medical retirement 3. Review of the applicant’s service records show: a. Having prior U. S. Army Reserve enlisted service, he enlisted in the New York Army National Guard (NYARNG) on 11 January 2006. He held military occupational specialty 92Y (Unit Supply Specialist). b. He was ordered to active duty in support of Operation Enduring Freedom and entered on 22 February 2014. He served in Afghanistan from 23 March to 11 November 2014. He was honorably released from active duty on 22 December 2014 and transferred to a NYARNG unit. His DD Form (Certificate of Release or Discharge from Active Duty) shows he completed 10 months and 2 days of net active service, including 7 months and 16 days of foreign service. c. He again entered active duty in an Active Guard Reserve (AGR) status on 24 December 2014. d. On 23 August 2019, an informal PEB convened and determined: (1) He was physically unfit for * Cervical Strain with Degenerative Disc Disease (Medical Evaluation Board (MEB Diagnosis (DX) 1 * Cervical Spine Strain (MEB DX 2) * Right Upper Extremity Cervical Radiculitis (Dominant) (MEB DX 3) * Left Upper Extremity Cervical Radiculitis (Non-Dominant) (MEB DX 4) (2) The PEB noted he was found fit for the following conditions: * Post-traumatic stress disorder (MEB DX 5) * Right ankle sprain (MEB DX 6) * Lumbosacral Spine Strain (MEB DX 7) * History of Rib Fracture: (MEB DX 8) * Bilateral Elbow Lateral Epicondylitis (MEB DX 9) * History of Gulf War Burning Pit Exposure (MEB DX 10) * Bilateral Foot Calcaneal Spur (MEB DX 11) * Bilateral Plantar Fasciitis (MEB DX 12) * History of Bilateral Foot Stress Fractures (MEB DX 13) * Bilateral Hammer Toes (MEB DX 14) * Bilateral Pes Planus (MEB Dx 15) * Tension Headache (MEB DX 16) * Incomplete Right Bundle Branch Block (MEB DX 17) * Right Knee Strain (MEB DX 18) * Bilateral Knee Tendonitis/Tendinosis (MEB DX 19) * Right Knee Patellofemoral Pain Syndrome (MEB DX 20) * Right Knee Patellofemoral Osteoarthritis (MEB DX 21) * Right Shoulder Tendonitis (MEB DX 22) * Left Shoulder Subacromial/Subdeltoid Bursitis (MEB DX 23) * Left Shoulder Labral Tear, Including Superior Labral Tear from Anterior to Posterior (SLAP) (MEB DX 24) * Left Shoulder Impingement Syndrome (MEB DX 25) (3) The PEB recommended a rating of 50% and his disposition as permanent disability retirement. He concurred with the findings and recommendations of the PEB and waived his right to a formal hearing. The PEB was approved on 11 September 2019. e. On 17 September 2019, the Chief, Personnel Division, National Guard Bureau (NGB) requested the applicant’s COAD. f. On 27 September 2019, he requested a COAD in lieu of retirement or separation and he had 15 years, but less than 18 years of active Federal service. He completed and signed a COAD packet. g. Orders Number 024-0001, published by TAG-NY on 3 February 2021, announced his release from active duty, not by reason of physical disability, and reassigned him for separation processing, with a reporting date of 31 January 2021. h. He was honorably released from active duty on 31 January 2021, under the provisions of National Guard Regulation (NGR) 600-5 (Personnel General – AGR Reserve Program), paragraphs 3-1, 3-6, 6-3, or 6-8, by reason of completion of required active service. He was transferred to a NYARNG unit. His DD Form 214 shows he completed the following: * 6 years, 1 month, and 7 days of net active service * 10 years, 4 months, and 16 days of total prior active service * 8 years, 1 month, and 6 days of total prior inactive service i. He was honorably discharged from the NYARNG, in pay grade E-6, on 31 January 2021, under the authority of NGR 600-200 (Personnel General – Enlisted Personnel Management System), chapter 6 and AR 135-178 (ARNG and Army Reserve – Enlisted Administrative Separations). He was transferred to the Retired Reserve. His NGB Form 22 (NG Report of Separation and Record of Service) shows he completed 20 years and 20 days of total service for retired pay. j. A NGB Form 23B (ARNG Retirement Points History Statement), dated 5 March 2021, shows he was credited with 20 years and 20 days of qualifying service for retirement, as of 31 January 2021. 5. By regulations: a. NGR 600-5, AGR enlisted Soldiers in grade E-6 and below will be mandatorily released upon completion of 20 years of active Federal service. b. NR 600-200, personnel will be involuntarily removed from Active Guard Reserve status only in accordance with procedures prescribed herein and only after the State TAG determines that all applicable laws and regulations have been complied with. The State Adjutant General will review all recommendations. c. NGR 600-200, an enlisted Soldier may be separated upon expiration of their military service obligation and terms of service. d. AR 135-178, ARNG enlisted Soldier will be separated for a variety of reasons. e. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), a Soldier may be separated for disability with or without severance pay. A Soldier may be discharged from the Army for not meeting retention standards in accordance with chapter 3 of AR 40-501 (Standards of Medical Fitness) and awarded a disability rating assigned by the Army’s disability system. 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. 6. 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. 7. 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. 8. Title 38, CFR, 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. 9. MEDICAL REVIEW: a. The Army Review Board 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 went through the IDES process and his disposition was permanent disability retirement. However, at the time, the applicant requested and was granted COAD. Now he would like to have medical disability retirement instead of the 20-year retirement he now has. b. Brief Summary of medical records. (1) 26Jun2017 ImageCare Latham Cervical MRI showed degenerative disc, facet, and uncovertebral disease without significant spinal canal stenosis or cord signal changes. Foraminal stenosis was most pronounced and severe on the right at C4-05, moderate to severe on the right at C5-C6, and moderate on the right at C3-C4. (2) 06Jul2017 Physical Therapy Associates of Schenectady. He underwent an Initial Evaluation for Diagnosis: Neck Strain, Radiculopathy (3) 23Jul2017 temporary physical profile for Neck Injury/Pain with multiple functional activity limitations; and all APFT events were prohibited. (4) 04Dec2017 Orthony note. He was seen for neck pain; and right greater than left shoulder pain, which was ongoing for approximately a year. He denied any trauma or inciting event. He had a constant aching sensation, it was worse with movement and better with ibuprofen. (5) 15Feb2018 Physical Therapy Associates of Schenectady. He had been seen for 27 visits. Treatment to his neck consisted of traction, manual therapy, stretching, strengthening, patient education, and instruction in a home exercise program. Since beginning physical therapy, he reported an 85% to 90% improvement in his neck. Active ROM of the cervical spine was full and pain free. Upper extremity strength was within normal limits. He was discharged from the physical therapy program at that time. (6) 26Feb2018 Functional Capacity Certificate. The examiner recommended a permanent no 2 mile run, no sit-ups or push-ups, and no walk. Biking was ok. (7) 26Feb2018 SS Fam Med PC MH 1 note. He had continued neck pain and a consult was sent to orthopedics to continue to evaluate and treat. (8) 14Sep2018 MR1 of the cervical spine showed moderate to severe neural foraminal narrowing at C3-C4, C4-C5 and C5-C6. There was no significant spinal stenosis. (9) 06Nov2018 Orthony note. He was somewhat limited with pushups due to his cervical stenosis, and he was also limited in terms of how much he could carry and lift. At that point, he was determined to not be deployable in the future. (10) 07Mar2019 Neck Conditions C&P exam. Neck forward flexion was to 45 degrees (normal was 45); extension was to 30 degrees (normal was 45); right lateral flexion was to 45 degrees (normal was 45); left lateral flexion was to 45 degrees (normal was 45); right lateral rotation was to 45 degrees (normal was 80); left lateral rotation was to 80 degrees (normal was 80). He reported bilateral pain and numbness in his arms, even at rest. Lifting causes pain. (11) 25Aug2020 SS Fam Med PC MH 1 note. The applicant presented requesting an updated MRI of cervical spine. He also requested x-rays of bilateral elbows and bilateral shoulders after having physical therapy. (12) 10Sep2020 Clifton Park Cervical Spine MRI showed mild degenerative changes at several levels in the cervical spine, without evidence of disc herniation or spinal cord compression. These changes are similar to the MRI of 14Sep2014 (found in the 03May2021 Interdisciplinary Note: External Imaging Report, in JLV). (13) 02Dec2020 (SS Fam Med PC MH 1 clinic). He was requesting a referral for Physical Therapy for his back and left shoulder, he has gone in the past for this issues. He was getting ready to retire in January 2021 so he would like updated paperwork. (14) 15Feb2021 Physical Therapy Associates of Schenectady. He was seen in physical therapy from 16Dec]2020 to 11Feb2021 for a total number of 15 physical therapy sessions. The treatment consisted of manual therapy, stretching, strengthening, patient education, and instruction in a home exercise program. Shoulder active ROM was full and strength was normal. There was mild pain upon resisted abduction. c. The 20Mar2019 permanent level 3 profile for Neck Injury/Pain; with multiple functional activity limitations to include no wearing of a helmet, body armor or load bearing equipment; move greater than 40 lbs; or live and function, without restrictions in any geographic or climatic area without worsening his condition. All APFT events were also precluded. On the same date, a permanent level 2 physical profile for Lower Back Injury/Pain and Bilateral Knee Injury/Pain was also noted. d. MEB NARSUM notes indicated that the condition began in 2014 with numbness in bilateral extremities. The ARBA reviewer noted from a HAIMS record, that he was first assessed with neck symptoms on 20Aug2010 (Saint Vincent Hospital) after a motor vehicle accident. The applicant was on active duty orders for over 30 days at the time. The MEB found that Cervical Spine Degenerative Disc Disease; Cervical Spine Strain; Right Upper Extremity Cervical Spine Radiculitis; and Left Upper Extremity Cervical Spine Radiculitis condition did not meet retention standards or AR 40-501 chapter 3. The MEB found that 21 other conditions did meet retention standards, to include PTSD. e. The Informal PEB convened 23Aug2019 found that the following conditions were unfitting for continued military service: Right Upper Extremity Cervical Radiculitis (Dominant) under VASRD Code 8510 at 20%; Left Upper Extremity Cervical Radiculitis (Non-Dominant) under VASRD Code 8510 at 20%; and Cervical Strain with Degenerative Disc Disease under VASRD Code 5242 at 10%. The PEB found that 21 other conditions were not unfitting. The applicant concurred with the PEB findings and waived a formal hearing of his case. He also did not request reconsideration of the VA ratings. f. The applicant requested to continue on active duty in order to reach the 20 year mark for retirement. The 24Jan2019 Commander’s Performance Information and the 09Jan2019 Battalion/First LTC Level Commander Review/Comments on DA Form 7652. A thorough description of the applicant’s duty performance, duty requirements for his MOS, and duty limitations in relation to his profile and physical conditions, were provided. The applicant’s Orthony (Albany, NY) physician affirmed that sedentary desk work was approved, in a letter dated 30Apr2019. Submitted documentation affirmed that he had been approved for COAD through 31Jan2021. g. The entire case to include the applicant’s ePEB file, MEB proceedings, PEB proceedings, and COAD application, was reviewed. It was also noted, the applicant was able to continue to serve on active duty until his 20-year goal was reached, without demonstrable worsening of his unfitting conditions. As far as performance of duty is concerned, the Enlisted Evaluation Report with effective date31Au2019, was completely redacted in iPERMS. Based on evidence available for review, the applicant’s Cervical Strain with Degenerative Disc Disease and Right and Left Upper Extremity Radiculitis conditions did not meet retention standards of AR 40-501 chapter 3, and were unfitting for continued military service. Despite his physical limitations, he was deemed qualified to do sedentary work in a garrison environment. The ARBA reviewer did not find medical evidence that demonstrated that either the previous IDES determination of permanent medical retirement disposition; or the subsequent decision (as it related to his medical conditions) to allow him to continue on active duty in a limited capacity, was in error. Concerning medical discharge processing at this point, there was no medical evidence that his physical condition significantly worsened during his COAD involvement. Apparently he was able to fulfil his duties and reach 20 years BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, regulatory guidance and a medical advisory opinion. The Board considered the medical records, documents provided by the applicant and the review and conclusions of the advising official. Evidence in the record show the applicant requested to complete his time to meet his 20 years of service after receiving his MEB offered disability rating. The Board concurred with the advisory official finding insufficient evidence that his physical condition significantly worsened during his COAD involvement. The applicant completed his service obligation to meet his 20 years of service. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XX XXX 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. National Guard Regulation (NGR) 600-5 (Army National Guard – The Active Guard Reserve (AGR) Program Title 32, Full Time National Guard Duty (FTNGD) Management, prescribes procedures for selecting, assigning, using, managing, and administering Army National Guard of the United States (ARNGUS) personnel serving on Full Time National Guard Duty (FTNGD) in an AGR status under the provisions of Title 32, United States Code (USC), Section 502(f) (32 USC 502(f)). The regulation states in: a. Paragraph 5-1 – AGR enlisted Soldiers in grade E-6 and below will be mandatorily released upon completion of 20 years of active Federal service (AFS). Personnel will be involuntarily removed from Active Guard Reserve status only in accordance with procedures prescribed herein and only after the State TAG determines that all applicable laws and regulations have been complied with. b. Paragraph 6-1 (General Release from the AGR Program as prescribed by this chapter relates to release from FTNGD. TAG of the State is the final separation/release authority for AGR Soldiers. Retention will not be directed when release from FTNGD or separation from the ARNG is mandatory under this chapter or any other applicable Army or National Guard regulation. AGR Soldiers within two years of becoming eligible for regular retired pay will not be involuntarily released from FTNGD unless the release is approved by the Secretary of the Army. c. Paragraph 6-2 (Medical separation) – AGR Soldiers being processed through the Disability Evaluation System (DES) or medical board proceedings will not be released from FTNGD, or retired from an AGR status until final disposition by medical authorities. Final disposition is the receipt of documentation that closes the medical case (for example, notice of return to duty, medical separation, or withdrawal from the DES process by Soldier). d. Paragraph 6-3 (Voluntary release) – Requests for voluntary release will be forwarded through command channels to the Human Resources Officer/AGR Manager. The HRO/AGR Manager will ensure that active service obligations are satisfied before processing requests for release or retirement. e. Paragraph 6-8 – Satisfactory service in AGR status is creditable as qualifying service for both Regular (Title 10, U. S. Code (USC), sections 1293, 3911, 3914, and 3917) and Non-Regular retirement (Title 10, USC, section 1223). a. Soldiers may retire after completing 20 years AFS calculated from their Basic Active Service Date. 2. NGR 600-200 (Personnel General – Enlisted Personnel Management System), sets standards, policies, and procedures for the management of the (ARNG) and the ARNG of the United States (ARNGUS) enlisted Soldiers. The regulation states in: Paragraph 6-1 – provides the authority to separate Soldiers upon expiration of their military service obligation and terms of service. 3. Army Regulation (AR) 135-178 (ARNG and Reserve – Enlisted Administrative Separation), sets policies for the orderly administrative separation of ARNGUS and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. 4. AR 40-501 (Standards of Medical Fitness), governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, the Physical Evaluation Board would rate all disabilities using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). Ratings can range from 0% to 100%, rising in increments of 10%. 5. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), prescribes policy and implements the requirements of chapter 61 (Retirement or Separation for Physical Disability) of Title 10, USC. The regulation states: a. The mere presence of a medical impairment did not in and of itself justify a finding of unfitness. In each case, it was 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. 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. b. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Because of differences between Army and VA applications of rating policies, differences in ratings could result. Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition at the time of separation. 6. Title 10, USC, 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% Title 10, USC, 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%. 7. Title 38, USC, 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. 8. Title 38, USC, 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) AR20210011050 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1