BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150003364 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: 12 July 2016 DOCKET NUMBER: AR20150003364 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: 12 July 2016 DOCKET NUMBER: AR20150003364 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: * correction of the orders that transferred him to the Retired Reserve in February 1998 to show his date of birth (DOB) * correction of his U.S. Army Reserve (USAR) discharge orders to show medical retirement 2. The applicant states: * at the time his orders were published, the DOB should have been noted on the order; it is currently listed as "00000000" * while assigned to Walter Reed Medical Center as an Individual Mobilization Augmentee (IMA), he requested a medical evaluation board (MEB) based on his Department of Veterans Affairs (VA) rating, for service-connection, that made him non-deployable * he was rated at 60 percent at the time with an appeal for another review that led to an award of 90-percent service connection * presently, the Army recognizes that a rating under the VA Schedule for Rating Disabilities (VASRD) satisfies eligibility for retirement based on Department of Defense (DOD) Directive 1332.18 3. The applicant provides: * Retired Reserve orders * Birth certificate * VA service-connection disability letter * Multiple VA rating decisions * DD Form 214 (Certificate of Release or Discharge from Active Duty) * ARPC 249-E (Chronological Statement of Retirement Points) 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, and 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 was born in July 1960. He will turn 60 years of age in July 2020. He was appointed as a Reserve commissioned officer of the Army on 14 June 1980. He completed the Armor Office Basic Course in 1982. 3. He served in a variety of positions within the USAR and he was promoted to captain on 15 February 1987. In 1991 he was appointed as a chaplain in the USAR. 4. On 17 June 1992, he entered active duty to fulfill a 3-year active duty requirement. However, because of his resignation, he was honorably released from active duty on 15 April 1993. Following his release from active duty, he was assigned to the USAR Control Group (Individual Ready Reserve (IRR)). 5. While in the IRR, he performed annual training with A Company, Walter Reed Army Medical Center. While in the IRR, the Army attempted to contact him by mail at his last known address but the mail was returned as he had moved. 6. In early 2008, following an inquiry into his status, the U.S. Army Human Resources Command published Orders C-02-803687 transferring him to the Retired Reserve effective 20 February 1998. The reason is listed as "Non-Selection for Promotion." The additional instructions on the order contain the entry "DOB: 00000000." 7. The applicant provides multiple VA rating decisions covering several years that essentially show: a. He filed an initial claim for VA disability in April 1993 and was awarded a 10 percent disability rating for each of the following medical conditions: pes planus plus left heel spur; retro patellar femoral syndrome, left knee; and hiatal hernia with associated gastritis. He appealed the 30 percent VA rating shortly thereafter resulting in an increase of disability rating to 50 percent in December 1994. The increase was due to additional consideration for an elevation in a muscle enzyme (later titled idiopathic myopathy). He filed a request with the VA for an increase in disability in March 1999 without change to his combined disability rating. b. A VA physical examination was completed in February 2001 leading to an increase in his VA disability rating to 60 percent based upon worsening of underlying gastroesophageal reflux disease (GERD) and an increase in frequency of his muscle aches. The next claim for a disability increase was in September 2002, but service-connection for the following conditions was denied by the VA: fatigue, headaches, fibromyalgia, depression, hemorrhoids, excessive urination, single level cervical degenerative joint disease, and pain in bilateral elbows/shoulders/hips and the left ankle. An August 2003 claim for VA disability increase resulted in a rating change to 70 percent based upon what appears to be two episodes of myalgia within 1 year lasting up to 1 week per episode. Major depressive disorder was added as an additional service-connected condition raising his rating to 90 percent around October 2003. c. In October 2004, the provided documents note that his weight had reached 375 pounds and that his gastrointestinal symptoms had worsened. The VA denied a disability claim increase for his newly diagnosed sleep apnea and chronic bronchitis. A claim for increase in VA disability was submitted in July 2008 following his gastric bypass surgery with associated ventral hernia. His combined VA disability rating as of the date of his release from military service was 90 percent. He filed additional claims for an increase in VA disability in 2010, 2013, and 2014. His VA disability rating remains 90 percent as of the date of his application. 8. The Army Review Boards Agency requested an advisory opinion regarding whether he requires correction to his military record in the form of an MEB and physical evaluation board (PEB) prior to his retirement from military service effective 20 February 1998. An official at OTSG referenced the Diagnostic and Statistical Manual-5th Edition; Army Regulation (AR) 40-501 (Standards of Medical Fitness), rapid revision, dated 4 August 2011; and AR 635-200 (Active Duty Enlisted Administrative Separations), dated 6 September 2011. The OTSG official stated: a. The applicant first entered active duty on 17 June 1992 and received an honorable discharge on 22 February 1998 following his unqualified resignation. In February 2015, he requested that the Board grant him a medical retirement. OTSG was asked to determine if he was eligible for medical retirement on the basis of a behavioral health (BH) condition. This opinion is based on the information provided by the Board and records available in the DOD electronic medical record (AHLTA). b. In October 2002, his request for service connection for anxiety/depression was denied. In October 2003, he was granted service connection for major depressive disorder associated with idiopathic myopathy with a disability rating of 50 percent, effective June 2002. This was reviewed by the VA in July 2008 and not increased. There are no behavioral health records during his service that indicate he met criteria for post-traumatic stress disorder or any other psychiatric disorder at the time of his separation. The available documentation does not support the presence of a BH condition that falls below retention standards. 9. On 5 July 2016, he responded to the advisory opinion. He stated: a. The issues raised in his formal request for correction to military records sought to categorize the prior retirement in the Army Reserve to a medical retirement. The issues were based on an extensive case file that he provided with all rating decisions by the VA dating back to the time that he was still in an active reserve status as an IMA. The issues go far beyond one area noted in the advisory opinion limiting the issue to a BH condition. Paragraph 4 of the letter sent to him stated that a October 2002 request was denied for anxiety/ depression, although that denial was later approved as a service­connected disability by the VA rated at 50 percent. At the time of his active duty service, it was frowned upon for a commissioned officer to seek treatment for a mental health condition. Although at Fort Lewis, WA, in January to February 1993, there should be a treatment record. His early struggle to manage anxiety and depression when a second lieutenant on active duty while serving in an Armored Cavalry Squadron that he made a formal complaint against the Squadron Commander after calling him offensive racial terms (i.e., n-word, black m-f). b. After filing a complaint, the Squadron Commander was relieved. That began to cause constant criticism and being placed in situation that was a no win position. This led to years of drinking to cope with his mistreatment but he did not seek mental health counseling that would have made his situation even more scrutinized. This event led to being what is known in the Army at the time as being black balled. There were times that he could be considered suicidal but sought to overcome his opposition based on maltreatment. c. His significant medical conditions related to his request also include idiopathic muscular disorder, knee condition both right and left, foot condition both right and left, and GERD. His current DA service-connected disability rating is 90 percent. To date, he struggles with health related issues. In closing, the culture has changed significantly since the 1980's and 1990's when it comes to service-members seeking BH counseling with official treatment records as a commissioned officer. Unfortunately, for him the culture did not exist during his time on active duty and active reserve status to seek help. REFERENCES: 1. AR 635-40 establishes the Army Physical 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 states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a soldier is found unfit because of another condition that is disqualifying. Only unfitting conditions or defects and those conditions, which contribute to unfitness, will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. The disability 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 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 retirement payments and have access to all other benefits afforded to military retirees. b. 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. 2. 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 at less than 30 percent. 3. AR 40-501 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 VASRD. Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. The 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 because of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 4. 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 higher VA rating does not establish an error or injustice in the Army rating. 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 awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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. 5. AR 600-8-105 (Military Orders) prescribes policies and mandated tasks governing military orders as a multifunctional program. Format 450 is used for transfers among Reserve Components, control groups, or units. Most formats have an additional instructions lead line to include information that is needed by the Soldier named in the order or is needed by an organization or unit if the order contains a standard name line of an organization or unit (figure 2-5). In addition, the information will be stated in the order because of an entitlement or obligation accruing from the action being taken or because it is essential to the purpose of the order (for example, reassignment, active duty of Soldier or unit, and reorganization of a unit). Do not include information that does not need to be in orders and can be furnished to Soldiers during out-processing or briefings and/or by a letter of instruction. The DOB is not a required entry. DISCUSSION: 1. There is a difference between military disability and VA service-connected disability. Reserve Component (RC) Soldiers become eligible for processing via a DOD MEB when they have medical and/or BH conditions severe enough to interfere with successful performance of assigned military duties of his/her office, grade, or rank as per AR 40-501, chapter 3. a. Substantiating evidence in support of a DOD MEB would include the Soldier's medical treatment records, series of physical profiles, annual performance evaluation reports, physical fitness test results, and an official statement from the parent unit commander regarding the Soldier's duty performance. Determination of medical fitness for military retention can result in a Soldier being found "fit" within the bounds of an appropriate permanent profile, or the Soldier could be found "unfit" for military retention and subsequently medically separated or medically retired on a permanent or temporary basis. The DOD rating is meant to compensate the Soldier for loss of his/her military career. DOD ratings are permanent upon final disposition and are affected by the years of service and basic pay. b. VA disability evaluations for RC Soldiers can be requested by the Soldier when a medical condition is discovered to exist, or incurred during military service whether the condition being claimed interferes with the Soldier's military work performance or not. In order for the Soldier to be awarded a VA disability rating, the condition assessed must be determined to be military service connected. Assignment of a VA disability rating is based upon the VASRD according to the severity of the applicable medical or behavioral health condition. The VA rating compensates for loss of civilian employability. VA disability ratings may fluctuate with time depending upon the progress of the condition(s). RC Soldiers who are awarded a VA disability rating are allowed to continue military service, but they are not allowed to receive payment from the military and VA disability benefits at the same time. RC Soldiers also continue to work their civilian jobs when not on drill status or placed on orders for military duty. 2. The applicant was awarded a VA disability rating nearly 5 years prior to his transfer to the Retired Reserve in February 1998. The physical conditions for which he was assigned a VA disability rating at this particular time include flat feet, left heel spur, left knee pain, a hiatal hernia with gastritis and a nonspecific elevation in a muscle enzyme. His Chronological Statement of Retirement Points, dated April 2015, supports that he earned annual membership points as a reservist between April 1993 and February 1998. There is no evidence presented to support that the conditions rated by the VA significantly impacted his ability to perform his military specialty or assigned duties as a member of the Army Reserves at the time of his initial claim (1993) or at the time of his transfer to the Retired Reserve in February 1998. 3. Several claims or appeals for an increase in VA disability rating from 1998 through 2014 resulted in an increase of his VA disability rating from 50 percent to 90 percent; however, the increases in VA disability rating following his transfer to the Retired Reserve does not authorize or automatically trigger an MEB. 4. The applicant was separated from the Army Reserve due to non-selection for military promotion. Assignment of a VA disability rating is not the basis for determining whether an RC Soldier is or is not retainable for continued military service. The available evidence does not support granting him the requested relief. 5. As for adding his DOB to his orders, there is no requirement to list the DOB on the applicant’s Retired Reserve orders because his DOB is recorded on several other personnel documents in his service record. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003364 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003364 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2