SAMR-RB 25 July 2016 MEMORANDUM FOR Office of the Surgeon General, ATTN: DASG-HSZ-PAD, 7700 Arlington Blvd., Suite 3SW328B, Falls Church, VA 22042 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20150003280 1. Reference the attached Army Board for Correction of Military Records of Proceedings, dated 14 July 2016, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by affording him processing through the Physical Disability Evaluation System (PDES) to determine if he should have been discharged or retired by reason of physical disability. In the event that a formal Physical Evaluation Board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent completion of the formal PEB. 3. Should a determination be made that the applicant should have been separated under the PDES, this memorandum will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowance and/or retired pay, less any entitlements already received. 4. Request necessary administrative action be taken to effect the correction of records as indicated no later than 25 November 2016. Further, request that the individual SAMA-RB SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20150003280 concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150003280 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150003280 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. _____________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. BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150003280 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant's military records to show he was medically retired effective 7 December 1997 or, in the alternative: a. consideration by a medical evaluation board (MEB), b. assignment of a disability rating of 75 percent, and c. payment of back pay in the amount of $942,525.45 or $439,845.21. 2. Counsel states, in effect: a. The applicant served a total of 14 years as a chaplain in the U.S. Army. Over the course of his career as a Soldier, he incurred several injuries to his left foot and left leg that ultimately rendered him unable to continue his Army career. His chain of command ordered his transfer to the Retired Reserve in January 1998, but he was never processed through the disability system. b. Despite serving 14 years in the Army and being left with several physical defects that still cause him pain to this day, he was never properly medically retired and has received no compensation for his service since January 1998. c. He entered military service in September 1979 as a chaplain. He completed 7 years and 12 days of active duty service. When he initially entered the service, he suffered from mild pes planus (flat feet). In August 1986, he underwent a medical examination. No physical defects were found and he was recommended for retention. In March 1989, he underwent a medical examination and he was approved for worldwide duty. d. In October 1993, he was treated for a severe sprain to his left arch. He had suffered a trauma to his foot several weeks before while serving on active duty. He was diagnosed with plantar fasciitis and post-traumatic sprain symptoms to his left foot and he was placed on limited duty status. He was treated for foot pain in January 1994 after a night of dancing which left him unable to run. The radiological report showed a "benign-type, irregular, wavy and thick periosteal new bone formation" at his proximal fibula consistent with muscle infection due to a stress fracture. The doctor recommended a bone scan to confirm the initial diagnosis. e. He again was treated for left foot pain in October 1994. The radiological report again found thickening in his left tibia that may represent a stress fracture and recommended a bone scan. He continued to suffer through pain in his left leg after resting his leg and requested to see a doctor in April 1995. The provisional diagnosis was a stress fracture. f. He was promoted to lieutenant colonel in 1997 and his next medical examination was in July 1997. His report of medical examination noted his foot and leg pain during the clinical evaluation. The report remarks that he had recurring pain in his lower left leg aggravated by running due to a possible stress fracture. He was found not qualified for continued service and noted he was advised of his disqualifying condition. 3. Counsel further states: a. On 7 December 1997, the applicant was released from his current Reserve assignment for being medically disqualified for retention and assigned to the Retired Reserve. b. He did not receive any retired pay from the Army following his retirement. He lived a fruitful life as a civilian rabbi and did not pursue the retirement that was owed to him until 2013. He applied for retired pay in January 2013. In March 2014, he was informed he was not eligible for retired pay because he did not complete 20 years of qualifying service. He had completed 14 years and 12 days of qualifying service for retirement. c. The Army made a material error by not sending the applicant to an MEB following his 2 July 1997 medical examination. He should have been referred to an MEB and ultimately medically retired. His first major issue with his feet arose in November 1993 when he suffered plantar fasciitis and a traumatic sprain to his left foot. Since this event, his medical records provide a clear and concise history of recurring pain in his left leg that rendered him unable to perform physical training or even stand for prolonged periods of time. His medical records show he suffered a stress fracture to his left tibia in October 1994. The cumulative effects of the injuries to his left leg led to him being declared unfit for duty following his 2 July 1997 medical examination. d. The Army made a material error by not medically retiring him retroactive to 7 December 1997. There appeared to have been some confusion regarding the applicant's eligibility for retirement in January 1998. This assertion is shown through the series of orders he received in January 1998 regarding his retirement. The first orders, dated 7 January 1998, reassigned the applicant to the Retired Reserve due to being medically disqualified for retention effective 8 December 1998. The second orders, dated 9 January 1998, reference the applicant's medical retirement. The third orders, dated 21 January 1998, changed the effective date to 7 December 1997 and assigned him to the Retired Reserve. Although there was confusion with the date he should be transferred to the Retired Reserve, it is clear his command intended to medically retire him. e. The applicant requests back pay retroactive to 7 December 1997, the date he should have been medically retired from the Army. Counsel calculates the back pay gross amount should be equal to $1,256,710.60. If the applicant's proposed disability rating of 75 percent is accepted, this would equal a back pay amount of $942,525.45. In the alternative, if the applicant's disability multiplier is used (14 years of service x 2.5 percent), the back pay awarded should equal $439,845.21. f. In light of the applicant's 14 years of honorable service as a chaplain in the Army, in conjunction with the medical evidence and arguments provided, the applicant should be added to the medically retired roster retroactive to 7 December 1997. He suffered a series of injuries to his left foot and leg during the course of his Army career that left him unfit for continued service as a lieutenant colonel in the Army. He has nothing to show for his 14 years of dedicated service except for the daily pain in his left and foot that still requires treatment. 4. Counsel provides: * undated supplemental brief * 29 exhibits outlined in his brief CONSIDERATION OF EVIDENCE: 1. The applicant was born on 5 January 1954. 2. He was commissioned as a Reserve officer on or about 29 September 1979 with concurrent orders to active duty. He was voluntarily released from active duty on 10 October 1986 and continued his service in the U.S. Army Reserve (USAR). He was promoted to lieutenant colonel effective 10 February 1997. 3. On 2 July 1997, he underwent a physical examination and was found not qualified for commissioned service in the USAR. He was assigned a physical profile rating of "3" in the lower extremities factor. 4. He was released from his USAR assignment and reassigned to the Retired Reserve effective 7 December 1997 because he was medically disqualified for retention in the USAR. 5. He did not complete 20 qualifying years of service for retired pay at age 60. 6. There is no evidence showing he retired and was placed on the Retired List. 7. There is no evidence showing he was processed through the Army Physical Disability Evaluation System. 8. In the processing of this case, an advisory opinion was obtained from the Carl R. Darnall Army Medical Center at Fort Hood, Texas. The medical officer stated: a. The advisory official reviewed counsel's brief and the applicant's available military records. There were no electronic medical records available. b. The advisory official was unable to explain why the applicant never underwent a bone scan, as it is the test of choice for diagnoses of stress fractures. However, considering all of his plain film x-rays were highly suggestive of stress fractures, along with the chronicity of his pain, a medical officer is left with an impression of stress fracture. The applicant was never casted or referred to orthopedics, so he never received "maximum medical benefit" to reach a medical retention decision point (in modern MEB terms). c. Stress changes and fractures of bone are extremely common. The vast majority of cases heal and resolve with activity reduction, gradual return to activity, and reconditioning. They resolve without any long lasting sequelae, pain, or problems. Soldiers are referred to an MEB/physical evaluation board (PEB) for conditions such as these. d. The applicant's reassignment orders standing alone would seem to support that he should have been advised of his eligibility for an MEB/PEB or non-duty related PEB. Multiple doctors listed significant duty limitations stemming from the left lower extremity pain, even for an Army chaplain. In the advisory official's experience, and in deference to the Army Physical Disability Agency, Soldiers with similar medical issues are not medically retired if found unfit for service, but are separated with some assignment of disability rating. The severity of the conditions may not have resulted in disability retirement, but not having an MEB/PEB or non-duty related PEB cost the applicant the opportunity to be found fit or potentially continued on active Reserve. It is not clear from the limited records what the applicant's intent toward active duty was. e. The applicant was eligible for an MEB for his left leg and foot problems. These problems as noted and described failed to meet retention criteria and resulted in medical disqualification. The applicant should have been referred to an MEB. 9. A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal. Counsel responded and concurred with the advisory opinion. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness), chapter 7 (Physical Profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): * P – physical capacity or stamina * U – upper extremities * L – lower extremities * H – hearing and ears * E – eyes * S – psychiatric 2. A physical profile rating of "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. A physical profile rating of "2" under any or all factors indicates an individual possesses some medical condition or physical defect which may require some activity limitations. A physical profile rating containing one or more numerical designations of "3" signifies the individual has one or more medical conditions or physical defects which may require significant limitations. The individual should receive assignment commensurate with his or her physical capability for military duty. A physical profile rating containing one or more numerical designators of "4" indicates the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. 3. Army Regulation 40-501, chapter 9 (Army Reserve Medical Examinations), sets basic policies and procedures for medical examinations and the periodic health assessment. a. Paragraph 9-10 states normally Reservists who do not meet fitness standards will be transferred to the Retired Reserve or discharged from the USAR. They will be transferred to the Retired Reserve only if eligible and if they apply for it. Reservists who do not meet medical retention standards may request continuance in an active USAR status. b. Paragraph 9-11 states requests for continuance in the USAR will include a copy of the most recent periodic medical examination or physical health assessment; any additional medical examinations, consultations, and hospitalization or treatment records pertaining to the unfitting condition; a summary of the Reservist's experience and qualification; or an evaluation by the Reservist's unit commander of the Soldier's potential value to the military service and the ability of the Solder to perform the duties of his or her primary military occupational specialty and grade. c. Paragraph 9-12 states Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet medical retention standards are eligible to request referral to a physical evaluation board for a determination of fitness. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. This regulation provides that the servicing medical treatment facility (MTF) will provide a thorough and prompt evaluation when a Soldier's condition becomes questionable in respect to physical ability to perform duty. Unit commanders will ensure that any physical defects impacting on a Soldier's performance of duty are reflected in the Soldier's evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating. It also states the MTF commander having primary medical care responsibility will conduct an examination of the Soldier referred for evaluation. If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. The MEB will recommend referral to a PEB of those Soldiers who do not meet medical retention standards. 5. Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers), paragraph 6-1, provides that Reserve Soldiers may request transfer to the Retired Reserve if they are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed. 6. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. DISCUSSION: 1. The evidence of record shows the applicant underwent a physical examination in July 1997 and was found not qualified for service with a physical profile rating of "3" in the lower extremities factor. A physical profile rating containing one or more numerical designations of "3" signifies the individual has one or more medical conditions or physical defects which may require significant limitations. 2. He was released from his USAR assignment and reassigned to the Retired Reserve effective 7 December 1997 because he was medically disqualified for retention in the USAR. 3. There is no evidence he was processed through the Physical Disability Evaluation System. 4. Per the medical advisory opinion recommendation, the applicant was eligible for an MEB for his left leg and foot problems. These problems failed to meet retention criteria and resulted in his medical disqualification. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003280 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003280 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2