IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150003426 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____X____ ___X_____ ___X_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150003426 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: a. Directing the U.S. Army Human Resources Command to issue the applicant a 15-year Retirement Letter. b. Affording him the opportunity for processing through the Integrated Disability Evaluation System (IDES) to determine if he should have been retired or discharged by reason of physical disability. (1) In the event that a formal 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 to completion of the formal PEB. (2) Should a determination be made that the applicant should have been separated under the IDES, these proceedings 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 allowances and/or retired pay, less any entitlements already received. 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 reassignment from the Retired Reserve to the Individual Ready Reserve. _____________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. IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150003426 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: * transfer from the Retired Reserve to the Individual Ready Reserve (IRR) for the purpose of being referred into the Integrated Disability Evaluation System (IDES) * submission of his medical records to a medical evaluation board (MEB) and physical evaluation board (PEB) so he can be provided with an appropriate disability rating [presumably one commensurate with that provided by the Department of Veterans Affairs (VA)] * a 15-year retirement letter 2. The applicant states, in effect: * he was given a retention physical when he redeployed from Iraq; based on this physical it was determined he did not meet medical retention standards * he was given a permanent profile and notified he was going to be separated from the Army * after questioning the separation process being used by his unit, he was given an early (15-year) retirement * he did not meet retention standards because of medical conditions incurred while he was deployed in Iraq; his case should have been referred to an MEB and he feels it is an injustice that it was not * having a retirement based solely on 15 years of service rather than one due to physical disability means: * he will not receive any retirement pay or benefits until he reaches age 60 (he is currently 49 years old) * his physically disabilities did not receive proper consideration and, as a result, he will not be eligible for Combat-Related Special Compensation (CRSC) until age 60 * he presently is 100 percent disabled and has been awarded a 100 percent service-connected disability rating from VA * he feels, in effect, he served in good faith and was then retired in error by people who just did not care * he was never properly counseled nor advised of the full implications of being retired rather than having his case evaluated by an MEB/PEB * he is requesting a 15-year letter because, despite his efforts, he was never issued one, and has been told this letter is required for him to receive retired pay and benefits at age 60 * although his Retired Reserve orders indicated the reassignment was voluntary, it was not; he asserts he was forced out 3. The applicant provides: * memorandum, dated 24 February 2006, signed by the Headquarters Commandant, subject: Notification of Medical Unfitness for Retention * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 25 July 2004 * a letter from VA, undated, which shows the applicant was awarded a 100 percent disability rating * extract from a VA Rating Decision which shows a service-connection for post-traumatic stress disorder (PTSD) * U.S. Army Human Resources Command (AHRC) Form 249-E (Chronological Statement of Retirement Points), printed 12 March 2015 * Orders 06-243-00014, dated 31 August 2006, issued by Headquarters, 81st Regional Readiness Command (RRC) 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's records show he was born on 7 June 1966, and will be 60 years of age on 7 June 2026. He enlisted in the U.S. Army Reserve (USAR) on 12 July 1991. He served in various positions and rose to the rank/grade of staff sergeant/E-6. 3. A DD Form 214 shows he was mobilized on 10 February 2003. He served in Iraq/Kuwait from 19 May 2003 to 19 June 2004. He was honorably released from active duty on 25 July 2004 because he completed his required active service. 4. His official military personnel file (OMPF) contains the follow documents: a. DD Form 2808 (Report of Medical Examination), shows a hearing test where the hearing equipment was calibrated on 22 March 2002. (1) Part of the right side is cut off so that such information as the date of the examination cannot be seen. It is shown, however, as having been entered into the applicant's OMPF on 22 March 2002. (2) The hearing test results reflect the pitch of a tone or frequency in hertz and volume of the tone in decibels. Readings for normal hearing are between 0 and 20 decibels. Readings above 20 decibels indicate sensorineural hearing loss. (3) The following readings were shown: * right - 500 hertz = 00 decibels; 1000 hertz = 00 decibels; 2000 hertz - 00 decibels; 3000 hertz = 05 decibels; 4000 hertz = 00 decibels; 6000 hertz - 15 decibels * left - 500 hertz = 05 decibels; 1000 hertz = 05 decibels; 2000 hertz - 05 decibels; 3000 hertz = 05 decibels; 4000 hertz = 10 decibels; 6000 hertz - 10 decibels b. DA Form 2173 (Statement of Medical Examination and Duty Status), describing an leg injury sustained during physical training by the applicant on 12 January 2003. The injury was determined to be in-line-of-duty by Headquarters, XVIII Airborne Corps on 4 March 2003. His records contain no other line-of-duty determinations. c. DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows the applicant reenlisted for an indefinite period on 23 February 2005. d. DD Form 2808, dated 2 May 2005, shows the results of a hearing test with a number of the entries showing not rated (NR) because the applicant could not hearing anything up to 90 decibels. The readings were: * right - 500 hertz = NR; 1000 hertz = NR; 2000 hertz - NR; 3000 hertz = NR; 4000 hertz = NR; 6000 hertz - NR * left - 500 hertz = 50 decibels; 1000 hertz = 50 decibels; 2000 hertz - NR; 3000 hertz = NR; 4000 hertz = NR; 6000 hertz - NR e. DD Form 2807-1 (Report of Medical History), dated 2 May 2005 which shows the following entries: * hearing loss in both ears * left shoulder tendonitis and some rotator cuff damage, Fall 2003 (suggesting onset of this condition occurred while deployed in Iraq) * arthritis in back, left foot, right heel, Fall 2003 * chronic back pain, damaged disc, bulging and herniated, arthritis, Fall 2003 * numbness and tingling in left foot and left heel, Fall 2003 * bone spurs and tendonitis, started Fall 2003 * high blood pressure since return from Iraq * severe anxiety and panic attack since returning from Iraq * diagnosed with chronic, severe PTSD since returning from Iraq * medication for depression since returning from Iraq f. Standard Form (SF) 507 (Clinical Record), which shows the date of evaluation as 2 May 2005, and that the document is a functional capacity certificate. (1) It lists the applicant's responses to questions related to his ability to perform military tasks (i.e. walking 12 miles with field gear, lifting 40 pounds, and the presence of medical conditions that could prevent deployment). The applicant identified medical issues related to his back, feet, hip, and shoulder, and acknowledged the presence of PTSD. (2) The examiner confirmed right shoulder tendinopathy, arthritis of the right foot, cervical and lumbar disc protrusion, and PTSD. The examiner marked these conditions as temporary. g. SF 507, dated 14 December 2005 and signed by the Assistant to the Command Surgeon, 81st RRC, shows the applicant was requested to provide additional medical information regarding the medical conditions listed below, but failed to do so: * arthritis, left shoulder * back pain, herniated disc * PTSD * bone spur * hearing loss * sinus problems * shortness of breath * hypertension h. DA Form 3349 (Physical Profile) with a second signature dated 20 December 2005, shows a permanent profile was issued for four of six profile categories, identified as Pulmonary (P), Upper Extremities (U), Lower Extremities (L), Hearing (H), Eyes (E), Psychiatric (S) (PULHES). (1) The profile identifies the medical conditions as: * the shoulder, back, knee, and foot pain * hearing loss * PTSD and depression (2) It shows a permanent profile level of "3" (significant limitation) for U, L, E, and S. A permanent level "4" (drastically limited) is shown for H. (3) Item 4c (If a Permanent Profile with a "3" or "4" PULHES, does the Soldier meet Retention Standards in accordance with chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), Army Regulation 40-501 (Standards of Medical Fitness) states the applicant needs an MEB/PEB. i. Memorandum, dated 21 February 2006, addressed to the Commander, 81st RRC from the 81st RRC Command Surgeon, which essentially states a review of medical records showed the applicant did not meet retention standards. (1) Based on the above memorandum, the unit notified the applicant in a memorandum dated 24 February 2006 (provided by the applicant). (2) The unit's memorandum further stated Soldiers with permanent "3" and "4" level profiles were to be transferred to the Individual Readiness (Trainees, Transients, Holdees, and Students (TTHS)) Division until their action is adjudicated. j. Memorandum, signed by the applicant, wherein he acknowledged being informed of his medical disqualification and indicated his selection from the following three options: (1) Request reassignment to the Retired Reserve with early qualification of eligibility to receive retired pay at age 60 (the applicant placed his initials next to this option). (2) Request an honorable discharge from the USAR. (3) Request an informal PEB to review medical records for a final determination of medical fitness for retention. k. DA Form 4187 (Personnel Action), signed by the applicant on 22 August 2006, shows the applicant requested the issuance of a memorandum of Early Qualification for Retired Pay at Age 60 (15-year letter). l. Orders 06-243-00014, dated 31 August 2006, issued by Headquarters, 81st RRC, shows the applicant was reassigned to the Retired Reserve effective 29 September 2006. m. Memorandum, dated 8 March 2012, issued by HRC, addressed to the applicant, which essentially stated he was ineligible to claim CRSC because he was not receiving military retired pay. 5. An AHRC Form 249-E, dated 15 October 2015, shows the applicant had 15 qualifying years of service for retired pay purposes. 6. In an advisory opinion, an official from HRC stated the applicant was eligible to receive a 15-year letter, and would have received one had his unit provided the required documentation. 7. A copy of this advisory was provided to the applicant but he did not submit a comment. 8. An official from The Office of the Surgeon General (OTSG) provided an advisory opinion, dated 22 June 2016. a. PTSD was listed on the applicant's retention examination, completed in May 2005. On 14 December 2005, he was determined to have "multiple problems contributing to not meeting medical retention standards." The applicant also reports he has been awarded a 100 percent service-connected disability rating through VA, and PTSD is a listed condition. b. The evidence implies the applicant is in an early retirement status due to disability, and that he may have incurred PTSD, as well as other medical conditions, during his active service. c. It is recommended the applicant be considered for evaluation within IDES. 9. The applicant was provided a copy of this advisory, but he provided no response. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System and set forth policies, responsibilities, and procedures for the evaluation of Soldiers considered unfit to perform their military duties as a result of physical disability. a. Chapter 3 stated the mere presence of a impairment did not, of itself, justify a finding of unfitness because of physical disability. In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably could be expected to perform because of his or her office, rank, grade or rating. b. Chapter 4 provided guidance for referring Soldiers for evaluation by a MEB when a question arose as to the Soldier's ability to perform the duties of his or her office because of physical disability. An MEB was convened to document a Soldier's medical status and duty limitations insofar as duty was affected by the Soldier's status. A decision was then made as to the Soldier's medical qualifications for retention based on the criteria found in Army Regulation 40-501. If the MEB determined the Soldier did not meet retention standards, the board was to recommend referral to a PEB. 2. Army Regulation 40-501, in effect at the time, provided medical retention standards and was used by MEBs to determine which medical conditions were to be referred to a PEB. a. Paragraph 3-3 stated Soldiers whose medical conditions failed retention standards were to be referred to a PEB, as defined in Army Regulation 635-40 (emphasis added). The PEB would then make the determination of fitness or unfitness. b. As an exception, USAR Soldiers not on active duty, and whose medical conditions were not incurred while on active duty (emphasis added), were to be processed under the provisions of chapter 9 (Army Reserve Medical Examinations) of this regulation. c. Chapter 7 provided guidance for the physical profile serial system The profile is based on the function of body systems and their relation to military duties. There are six factors, designated as: * "P" for physical capacity or stamina * "U" for upper extremities * "L" for lower extremities * "H" for hearing * "E" for eyes * "S" for psychiatric d. Each factor is assigned a numerical designation from 1 to 4. * "1" represents a high level of medical fitness * "2" means there are some activity limitations * "3" equates to significant limitation * "4" indicates defects of such severity military duty performance is -drastically limited e. The DA Form 3349 was to be used to record both permanent and temporary profiles. Failure to meet medical retention standards requires referral to an MEB/PEB (emphasis added). f. Permanent "3" and "4" profiles require the signatures of two profiling officers, one of which is a physician approving authority (emphasis added). Physical profiles for Reservists not on active duty may be accomplished by the U.S. Army Regional Support Surgeon, division staff surgeons, or the Surgeon, Army Reserve Personnel Command. f. Paragraph 9-10 (Disposition of Medically Unfit Reservists) states, normally, Reservists who do not meet the fitness standards set forth in chapter 3 are transferred to the Retired Reserve in accordance with Army Regulation 140-10 (Assignments, Attachments, Details, or Transfers), or discharged per Army Regulation 135-178 (Enlisted Administrative Separations). (1) Reservists who do not meet medical retention standards may request continuance in active USAR status. In such cases, the medical impairment need not have occurred only in the line of duty, impairments incurred in either military or civilian will be acceptable. (2) Reservists with nonduty-related medical conditions who are pending separation for not meeting medical retention standards may request referral to a PEB for a fitness determination. 3. The 15 year Notice of Eligibility (NOE) was enacted into law in 1999 under the provisions of Title 10, U.S. Code, section 12731b and addressed members with physical disabilities that were not incurred in the line of duty. a. When a member of the Selected Reserve no longer meets the qualifications to remain in the Selected Reserve solely because of being unfit due to a physical disability, and has at least 15 but not less than 20 years of service, the Secretary concerned may determine to treat that member as having met the service requirements for being issued an NOE. b. Effective 12 March 2009, new guidance indicated the Early Qualification Retired Pay at Age 60 provision applied to all Selected Reserve Soldiers whether or not the physical disability was incurred or aggravated in the line of duty. c. For nonduty-related medical disqualification, Army Reserve Troop Program Unit (TPU) Soldiers are to submit a request to be reassigned to the Retired Reserve. This request is forwarded through channels with recommendations and required supporting documentation to HRC. HRC then issues the NOE. 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 error or injustice in the Army rating. a. 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. b. 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. c. 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. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. DISCUSSION: 1. The applicant essentially requests evaluation by a MEB and PEB as well as the issuance of a 15-year letter. The evidence of record appears to support the granting of the applicant's requests. a. The applicant received a hearing test during a medical examination conducted in or around March 2002. Both ears registered within the normal range. In the 2 May 2005 medical examination, performed about a year after redeploying from Iraq, both ears were well outside of normal limits. In fact, the hearing in his right ear was so damaged the physician simply entered "NR" for all frequencies. While not conclusive evidence of the damage having occurred while the applicant was on active duty, it is strongly suggestive of this and could be better determined by an MEB's evaluation of the applicant's entire medical record. b. The DD Form 2807-1 (Report of Medical History), dated 2 May 2005, shows entries made by the examining physician which, apart from the applicant's hearing loss, suggested each of the medical conditions listed below (which later appeared on the applicant's physical profile) had their onset while the applicant was deployed to Iraq: * left shoulder tendonitis and some rotator cuff damage * arthritis in back, left foot, right heel * chronic back pain, damaged disc, bulging and herniated, arthritis * severe anxiety and panic attack since returning from Iraq * diagnosed with chronic, severe PTSD since returning from Iraq c. The DA Form 3349, with a second signature dated 20 December 2005, was a permanent profile which recommended evaluation by an MEB/PEB (emphasis added) and listed the following medical conditions and numerical designations: * U - "3" for shoulder and back pain * L - "3" for knee and foot pain * H - "4" for hearing loss * S - "3" for PTSD and depression d. By regulation, where a USAR Soldier has incurred medical conditions while on active duty, his case is to be referred to an MEB. In the applicant's case, however, and despite evidence to the contrary available in his military medical record, his unit treated his disabling conditions as being nonduty-related, and processed his case accordingly. 2. The applicant's record shows the Command Surgeon's office within the 81st RRC attempted to gain additional information from the applicant with regard to the medical conditions for which he received a profile. The record also indicates the applicant apparently did not respond. Despite this, it would still have been appropriate for the unit to refer the applicant to an MEB based on the recommendation in his DA Form 3349, the results of his medical examination conducted on 2 May 2005, and evidence that most, if not all, medical conditions had their onset while he served in Iraq. 3. An official from OTSG reviewed the above information and recommended the applicant's referral into IDES. 4. Based on the foregoing, and as a matter of equity, it would be appropriate to grant the applicant's requests and refer his medical records for review by an MEB and, as appropriate, a PEB. Processing through IDES can be accomplished without transferring the applicant from the Retired Reserve to the IRR. 5. Regarding the issuance of a 15-year letter, HRC acknowledges the applicant was eligible and should have received one. While it is appropriate to refer the applicant into IDES, there is no harm in requiring HRC to issue this letter. As such, in the event the IDES process does not result in findings deemed favorable by the applicant, he would still have the ability to submit for retired pay at age 60. 6. As to the VA rating decision provide by the applicant, he appears to have been awarded service-connected disability compensation by the VA. However, an award of a rating by another agency does not establish a requirement for that rating to be assigned by the Army's disability system. a. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for the military services (emphasis added). b. The VA may award ratings because a medical condition was related to military service (service-connected) and now affects the individual's civilian employability. c. The findings of the VA as to disability conditions, particularly those noted after a Soldier's discharge, are not binding on the Army and do not require a reassessment of earlier determinations. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003426 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003426 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2