IN THE CASE OF: BOARD DATE: 7 October 2014 DOCKET NUMBER: AR20140000850 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect: a. correction of her Narrative Summary (NARSUM), dated 1 December 1994, to show her Social Security Number (SSN) as "XX1-XX-xxxX" vice "XX2-XX-xxxX." b. correction of her DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 22 April 1991, and her DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 27 March 1995, to list her snapping left hip, musculoskeletal strain of left pelvis, sciatic injuries, back injuries, Post-Traumatic Stress Disorder (PTSD), and Major Depressive Disorder (MDD). c. an upgrade of her discharge for disability with severance pay to a medical retirement. 2. The applicant states, in effect, she reviewed her medical records and noticed her NARSUM contained the wrong SSN. She also stated she believes she should have received a medical retirement because she had a permanent level 3 profile (P-3) for almost 3 and a half years of her military service. Her career and her health were cut short because she suffered from snapping hip syndrome, chronic sciatic nerve damage aggravated by military service, PTSD, and MDD. She does not feel that she was properly evaluated for all of her physical and mental injuries. She deployed to Somalia after having a P-3 profile lifted because her unit was short staffed. She was raped in country, was afraid for her life, and had a mental breakdown. Additionally, she was hospitalized twice for viral issues and further injured her hip, sciatic nerve, and lower back. As a result of her injuries and illness she was redeployed earlier than her unit. She believes she was thrown out of the military without the proper evaluation and her PEB representative did not invest the proper time in reviewing all of her medical issues. She never received copies of her hospital records from her deployment to Somalia and, as a result, she is not able to receive the proper service connection disability from the Department of Veterans Affairs (VA). 3. The applicant provides: * self-authored statement, undated * various email transmissions, dated from 9 December 2013 to 13 January 2014 * NARSUM, dictated 12 April 1991 * statement, dated 15 April 1991 * DA Form 3947, dated 22 April 1991 * DA Form 5889-R (PEB Referral Transmittal Record), dated 1 May 1991 * statement, 17 November 1994 * NARSUM, dictated 1 December 1994 * Standard Form (SF) 93 (Report of Medical History), dated 4 January 1995 * SF 88 (Report of Medical Examination), dated 4 January 1995 * DA Form 3947, dated 1 February 1995 * PEB Liaison Officer (PEBLO) counseling checklist/statement, dated 21 February 1995 * DA Form 3349 (Physical Profile), dated 1 February 1995 * DA Form 5889-R, dated 3 March 1995 * DA Form 199 (1st page only), dated 27 March 1995 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 16 November 1990 and reenlisted on 8 January 1993. She served in military occupational specialty (MOS) 77F (Petroleum Supply Specialist) and attained the rank/grade of specialist (SPC)/E-4. 3. She provided a NARSUM, dictated on 12 April 1991, diagnoses her with musculoskeletal strain of the left pelvis. The NARSUM only listed her name; her SSN was not listed. 4. She provided MEB proceedings, dated 22 April 1991. The MEB evaluated her for musculoskeletal strain of the left pelvis and referred her to a PEB. She agreed with the MEB’s findings and recommendations. Her SSN was properly listed as "XX1-XX-xxxX." 5. Her record contains a DA Form 3349, dated 22 April 1991, showing she had a permanent P-3 profile for the medical condition of muscle strain of the left hip. This form correctly shows her SSN as "XX1-XX-xxxX." 6. She provided a DA Form 5889-R, dated 1 May 1991, which shows her SSN as "XX1-XX-xxxX." 7. Her record contains a memorandum issued by the U.S. Total Army Personnel Command (currently the U.S. Army Human Resources Command (HRC)), on 2 July 1991. This memorandum approved a PEB action and stated: a. The PEB which convened on 9 May 1991 at Walter Reed Army Medical Center (WRAMC) determined the applicant was fit for military service in accordance with the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24. b. The applicant was found physically fit to perform the duties of her office, grade, rank, and MOS in accordance with her physical profile and assignment limitations. c. The Soldier should be returned to duty. When a Soldier is returned to duty and is incapable of satisfactorily performing primary MOS (PMOS) duties because of disability, action should be initiated to again refer the Soldier into the Physical Disability Evaluation System (PDES) for reevaluation. 8. Her record contains a DA Form 3349, dated 26 August 1991, showing she had a permanent P-3 profile for the medical conditions of muscle strain of the left hip and bilateral tibia stress fracture. This form correctly shows her SSN as "XX1-XX-xxxX." 9. She provided a NARSUM, dictated on 1 December 1994, which incorrectly shows her SSN "XX2-XX-xxxX," and diagnoses her with symptomatic left snapping hip syndrome. 10. She provided MEB proceedings, dated 1 February 1995. The MEB evaluated her for symptomatic left snapping hip syndrome and referred her to a PEB. She agreed with the MEB’s findings and recommendations. Her SSN was properly listed as "XX1-XX-xxxX." 11. Her record contains a DA Form 3349, dated 18 February 1995, showing she had a permanent P-3 profile for the medical condition of snapping left hip syndrome. This form correctly shows her SSN as "XX1-XX-xxxX." 12. She provided her PEB proceedings, dated 27 March 1995. This form properly listed her SSN as "XX1-XX-xxxX" and shows the PEB considered her for the condition of symptomatic left snapping hip syndrome. The PEB recommend a 10% disability rating, and recommended she be separated with severance pay. The concur/non-concur section of the PEB was not provided. 13. Orders Number 139-0172, issued by U.S. Army Combined Arms Support Command, Fort Lee, VA, on 19 May 1995, show her SSN correctly as "XX1-XX-xxxX." This order also shows she was scheduled to be discharged on 26 May 1995, she was awarded a percentage (%) of disability rating of 10%, and was authorized disability severance pay in the rank/grade of SPC/E-4 based on 4 years, 6 months, and 11 days of service. 14. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows her SSN as "XX1-XX-xxxX" and confirms she was honorably discharged by reason of disability with severance pay on 26 May 1995. This form also confirms she served in Somalia from 19 January 1993 to 11 March 1993. 15. Title 10, U.S. Code (USC), 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, under the operational control of the Commander, HRC, is responsible for administering the PDES 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. a. The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected. b. Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board, when a Soldier receives a permanent medical profile, P3 or P4, and is referred by an MMRB, when they are command-referred for a fitness-for-duty medical examination, and when they are referred by the Commander, HRC. c. The PDES assessment process involves two distinct stages: The MEB and the 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 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees. d. 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. 16. 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). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD). Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. 17. 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 percent. 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 at less than 30 percent. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant’s SSN is incorrectly listed on the NARSUM, dated 1 December 1994. Therefore, she is entitled to correction of this record to show her SSN as "XX1-XX-xxxX." 2. The evidence of record shows, in April 1991, she was evaluated by an MEB for musculoskeletal strain of the left pelvis. She agreed/concurred with the MEB’s findings. The MEB referred her to a PEB for this condition and the PEB determined she was fit for duty. As a result she was returned to duty with a permanent P-3 profile. She did not provide a copy of this PEB to show whether or not she concurred or non-concurred with the PEB’s findings. 3. The evidence of record shows she underwent MEB proceedings in February 1995. The MEB evaluated her for symptomatic left snapping hip syndrome and referred her to a PEB. She agreed with the MEB’s findings and recommendations and subsequently underwent PEB proceedings in March 1995. The PEB also considered her condition of symptomatic left snapping hip syndrome, found her to be unfit, recommended a 10% disability, and recommended she be separated with severance pay. She did not provided the signature page of the PEB to show whether or not she concurred or non-concurred with the PEB’s findings. 4. There is no evidence to show she ever complained of or was treated for sciatic injuries, back injuries, PTSD/PTSD related symptoms, or MDD, that she had a profile for these conditions, or that these conditions were found unfitting and were referred for evaluation through the PDES. She provides no evidence now to show she has been diagnosed with a service-connected PTSD. Other than the conditions currently listed on her MEBs/PEBs, there is no evidence to show she had a diagnosis of a disabling condition that rendered her unable to perform the duties required of her MOS or grade. Likewise, there is no evidence she sustained additional disabling conditions that warranted her entry in the PDES. 5. If and when identified, diagnosed, evaluated, and rated, a disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES. Only those conditions that render a member unfit for continued military duty at the time of separation will be rated. 6. Whenever there is a disability, 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. 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. 7. The PEB is tasked to assess the degree of disability at the time of discharge. The PEB did so and rated her 10% disabled for her condition. There is no evidence that she should have been awarded a higher rating. Since this rating was less than 30%, by law she was only entitled to severance pay. 8. Based on the foregoing, and with the exception of the correction pertaining to her SSN, there is insufficient evidence to grant the requested relief. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___X____ ____X___ ___X___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 issuing the appropriate documentation to show the NARSUM, dated 1 December 1994, contains an incorrect SSN and then listing her correct SSN as shown on her DD Form 214. 2. The Board further determined that 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 adding additional medical conditions to her two MEBs/PEBs and upgrading her discharge to a medical retirement. _______ _ X_______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20140000850 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140000850 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1