IN THE CASE OF: BOARD DATE: 24 November 2015 DOCKET NUMBER: AR20150004842 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, correction of his records to show he retired by reason of physical disability with a disability rating of 80 percent. 2. The applicant states: * he served in the Army National Guard (ARNG) from June 2003 through July 2010 * he received an honorable discharge upon his expiration term of service (ETS) in 2010 * at that time he chose to leave the service to return to civilian life because he had a lot of pain and medical issues which kept him from getting promoted * he had permanent physical profiles from injuries he sustained while serving in on active duty during two consecutive year-long deployments in support of Operation Iraqi Freedom (OIF) * after his separation, he filed a claim with the Department of Veterans Affairs (VA) which subsequently awarded him a service-connected disability rating of 80 percent * he has continuous medical issues stemming from injuries he sustained during his Army career * his VA representative told him he was not medically retired due to his injuries, effectively denying him benefits he worked hard for and earned * prior to his separation, he was an intelligence noncommissioned officer in charge and a readiness noncommissioned officer for an aviation battalion in the Utah ARNG * he was an Active Guard Reserve(AGR) staff sergeant with many service medals and unit citations * he decided to go back to civilian life and start a family when he decided not to extend his enlistment contract * his two main reasons for making this decision were the deployments and the pain he was in * he had been on two deployments in a span of 3 years * he had a permanent physical profile which kept him from being able to conduct his job effectively and efficiently * once he approached his ETS date, he sat down with a representative from the Utah ARNG Human Resources Office to complete his out-processing * he was asked if he had any medical issues he needed to report, to which he replied that he did * he was told to talk with the VA after separation for assistance with his medical issues * looking back, he feels he was not formally discharged in a way that benefits him * his medical issues and concern seemed to be ignored by stating the VA would take care of his medical issues * he served for a little more than 7 years, sustained injuries while serving, and always exceeded the expectations of his command * he does not have privileges to use military commissaries or other veterans' benefits * he is in constant pain and anxiety stemming from his service * for a 29-year old, his medical condition is very poor and he has little to no motivation to stay active and in good healthy shape * his body is physically unable to be active for any period of time * he has knee problems, anxiety disorders, tinnitus, and migraine headaches, as well as feet, wrist, and back problems which have all been diagnosed by the VA and determined to be service-`connected * he feels he deserves TRICARE coverage for his family for what he put them through in support of his service and deployments * although he has VA benefits, he still needs to pay a huge amount of money for his family's health benefits which was much cheaper with TRICARE * the motivation he once had as a Soldier is nearly non-existent as his physical shape and the pain he endures keeps him from being active with his young daughter and family * he believes he should be considered for the retirement benefits he was not afforded when he was discharged * after speaking with the VA and many of his previous comrades, he feels he was out-processed in a speedy fashion and not afforded the medical review opportunity he requested * both officials at the VA and Disabled American Veterans believe his condition calls for a review by the Army Board for Correction of Military Records (ABCMR) and ultimately military benefits from the injuries he sustained while serving in the military 3. The applicant provides: * DA Form 2-1 (Personnel Qualification Record – Part II) * various enlistment/reenlistment documents * multiple DA Forms 4187 (Personnel Action) showing his advancements in rank/pay grade from private/E-1 through specialist/E-4 * initial active duty for training orders * multiple mobilization orders and orders releasing him from active duty * five DD Forms 214 * memorandum certifying his period of service entitling him to wear the Iraq Campaign Medal and Global War on Terrorism Service Medal * Army Achievement Medal Certificate and accompanying DA Form 638 (Recommendation for Award) * active duty for special work orders * seven DA Forms 3349 (Physical Profile) * three DD Forms 2795 (Pre-Deployment Health Assessment) * DD Form 2796 (Post-Deployment Health Assessment) * DD Form 2808 (Report of Medical Examination) * DA Form 7349 (Initial Medical Review – Annual Medical Certificate) * NGB Form 22 (Report of Separation and Record of Service) * Department of Veterans Affairs (VA) letter, dated 21 November 2011, regarding the appeal of his VA claim * VA benefits information letters, dated 6 December 2012 and 2 December 2013 * additional personnel documents in excess of 30 pages, including awards, diplomas, certificates, orders, evaluations * additional medical documents in excess of 100 pages 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 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 ARNG on 6 June 2003 for a period of 8 years. 3. Salt Lake City Military Entrance Processing Station Order 417324, dated 21 June 2004, ordered him to initial active duty for training on 27 September 2004. On 14 January 2005, he was released from active duty for training due to completion of required active service. His DD Form 214 shows he completed 3 months and 18 days of active service during this period. 4. Headquarters, Utah National Guard, Office of the Adjutant General, Orders 025-315, dated 25 January 2005, ordered him to active duty as a member of his Reserve Component unit in support of OIF effective 28 January 2005. A Pre-Deployment Health Assessment completed on 3 February 2005 shows he assessed his health as very good, had no medical or dental problems, was not issued a physical profile, required no medical referral, and was found fully deployable without limitations. 5. On 2 May 2006, he was honorably released from active duty due to completion of required active service. His DD Form 214 shows he completed 1 year, 3 months, and 5 days of active service during this period. A Post-Deployment Health Assessment conducted on 11 April 2006 shows he assessed his health as very good, had no unresolved medical or dental problems that developed during this deployment, was not issued a physical profile, required no medical referral, and had no concerns. 6. Headquarters, Utah National Guard, Office of the Adjutant General, Orders 305-218, dated 1 November 2006, ordered him to active duty for special work under Title 32, U.S. Code, section 501, from 1 November 2006 through 31 December 2006 in Brigham City, UT. 7. Joint Forces Headquarters, Utah Army National Guard Orders 306-016, dated 2 November 2006, attached him to Utah ARNG Recruiting and Retention Command. 8. Headquarters, Utah National Guard, Office of the Adjutant General, Orders 348-234, dated 14 December 2006, ordered him to active duty for special work under Title 32, U.S. Code, section 501, from 1 January 2007 through 30 September 2007 for Recruit Sustainment Program support in Brigham City, UT. 9. A DA Form 3349, dated 9 January 2007, shows he was assigned a permanent physical profile rating of 2 in the upper extremities factor for back pain. Along with that DA Form 3349, the applicant also submitted two other DA Forms 3349, dated February 2007, pertaining to Soldiers other than the applicant. 10. Headquarters Utah National Guard, Office of the Adjutant General, Orders 177-231, dated 26 June 2007, amended Orders 348-234 to change the ending date of his active duty for special work from 30 September 2007 to 30 June 2007. 11. Headquarters, Utah National Guard, Office of the Adjutant General, Orders 177-039, dated 26 June 2007, ordered him to Full Time National Guard Duty in an AGR status for the period 1 July 2007 through 30 June 2010 (3 years). 12. A DD Form 2808, dated 19 July 2007, shows he received a medical examination for the purpose of retention. He was diagnosed with bilateral knee pain, assigned a permanent physical profile rating of 2 in the lower extremities factor for knee pain, and was found qualified for service. A DA Form 3349, dated 2 October 2007, shows he again received a permanent physical profile rating of 2 in the lower extremities factor for bilateral knee internal derangement. He was cleared to attend military occupational specialty (MOS) 96B (Intelligence Analyst) training. 13. A DA Form 7349, dated 9 December 2007, reaffirmed his permanent physical profile rating of 2 in the lower extremities factor for his knees and found him fit for duty. 14. Headquarters, Utah National Guard, Office of the Adjutant General, Orders 023-367, dated 23 January 2008, ordered him to active duty as a member of his Reserve Component unit in support of OIF under Title 10, U.S. Code, section 12302, effective 17 February 2008. 15. His DD Form 214 for the period 1 November 2006 through 16 February 2008 shows he was honorably released from active duty in order to continue on active duty in another status. He completed 7 months and 16 days of net active service during this period. 16. A Pre-Deployment Health Assessment conducted on 25 February 2008 shows he assessed his health as good, had no medical or dental problems, was assigned a physical profile, had no concerns about his health, required no medical referral, and was found fully deployable. 17. A second Pre-Deployment Health Assessment was conducted on 24 April 2008 and shows he assessed his health as very good, had no medical or dental problems, was assigned a physical profile, had no concerns about his health, required no medical referral, and was found fully deployable. 18. A DA Form 3349, dated 2 June 2008, shows he was assigned permanent physical profile ratings of 2 in the physical capacity or stamina and lower extremities factors for back and knee pain. 19. Headquarters, Utah National Guard, Office of the Adjutant General, Orders 042-025, dated 10 February 2009, ordered him to Full Time National Guard Duty in an AGR status for the period 6 March 2009 through 30 June 2010. 20. His DD Form 214 for the period 17 February 2008 through 5 March 2009 shows he was honorably released from active duty in order to continue on active duty in another status. He completed 1 year and 19 days of net active service during this period. 21. A DA Form 3349, dated 10 March 2010, shows he was assigned a permanent physical profile rating of 2 in the lower extremities factor for his lower back and knee pain. 22. A Periodic Health Assessment, dated 1 April 2010, shows he was assigned a permanent physical profile rating of 2 in the lower extremities factor, limiting running due to knee pain and restricting sit-ups due to lower back pain. It also shows he underwent surgery on his right wrist, had frequent headaches, left shoulder pain during strenuous physical activity, and was considered deployable to an austere environment within the next 6 months. 23. His DD Form 214 for the period 6 March 2009 through 14 June 2010 shows he was honorably released from active duty due to completion of required active service. He completed 1 year, 3 months, and 16 days of net active service during this period. 24. His NGB Form 22 shows he was honorably discharged from the ARNG due to ETS on 5 July 2010 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-36n. Joint Forces Headquarters, Utah ARNG, Orders 208-017, dated 27 July 2010, discharged him from the ARNG and assigned him to the U.S. Army Reserve Control Group (Individual Ready Reserve) effective 5 July 2010 under the provisions of National Guard Regulation 600-200, paragraph 6-36n. 25. His service records do not contain documentation indicating he: * was issued a permanent physical profile rating of 3 or 4 * suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * was diagnosed with a condition that failed retention standards and/or was unfitting 26. He provided a letter from the VA, dated 21 November 2011, providing a statement of his case, a summary of the law, and evidence concerning his filed Notice of Disagreement with the VA determination of his claim. At the time of the letter, he had been granted the following service-connected disability percentages for the following ailments: * 10 percent for right De Quervain's tenosynovitis (painful condition affecting the tendons on the thumb side of the wrist), status post-surgery * 10 percent for right wrist scar with residual paresthesias (distorted tingling sensation or numbness)/dysesthesia (abnormal painful sensation such as burning), status post-surgery * 10 percent for right knee patellofemoral pain syndrome (pain in the front of the knee and kneecap) * 10 percent for left knee patellofemoral pain syndrome 27. The applicant provided two subsequent letters from the VA, dated 6 December 2012 and 2 December 2013, both stating he has service-connected disability with a combined disability rating of 80 percent as of 1 December 2011. The rated conditions determined to be service connected are not listed in either letter. 28. Army Regulation 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 physical evaluation board (PEB) rates all disabilities using the VA Schedule for Rating Disabilities (VASRD). Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3-2. Paragraph 3-1 states these medical conditions and physical defects, individually or in combination, are those that: (a) significantly limit or interfere with the Soldier's performance of his or her duties, (b) may compromise or aggravate the Soldier's health or well-being if he or she were to remain in military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring), (c) may compromise the health or well-being of other Soldiers, and (d) may prejudice the best interests of the government if the individual were to remain in military service. 29. Title 10, U.S. Code, 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, U.S. Army Human Resources Command, 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 Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 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 * provide prompt disability processing while ensuring that 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 (MEB) * receive a permanent physical profile rating of 3 or 4 and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, U.S. Army Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the PEB. A PEB is an administrative body possessing the authority to determine whether or not 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 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 on disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of 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 duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 30. Army Regulation 635-40 establishes the Army PDES 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 or her office, grade, rank, or rating. 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. Paragraph 3-4 states under the laws governing the Army PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits. a. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. b. The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 31. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers. Chapter 6 (Transfer to and from the Retired Reserve) states assignment to the Retired Reserve is authorized for Soldiers who: * are entitled to receive retired pay from the U.S. Armed Forces because of prior military service * have completed a total of 20 years of active or inactive service in the U.S. Armed Forces * are medically disqualified for active duty resulting from a service-connected disability * were appointed based on the condition the Soldier immediately apply for transfer to the Retired Reserve * reached the age of 37, completed a minimum of 8 years of qualifying Federal service and served at least 6 months of active duty in time of war or national emergency * completed 10 or more years of active Federal commissioned service * 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 32. 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 of less than 30 percent. 33. 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 as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 34. 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 on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the 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. These two government agencies operate under different policies. 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. 35. National Guard Regulation 600-200, chapter 6, prescribes policies and procedures for separation of enlisted Soldiers from the ARNG. Paragraph 6-36n lists expiration of active status commitment in the Selected Reserve as a valid reason for separation from the State ARNG. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for correction of his records to show he received a physical disability retirement from the Army with a disability rating of 80 percent was carefully considered. 2. Although it is very well documented in the applicant's records that he had a permanent physical profile rating of 2 for his lower back pain and knee pain, there is no indication he had a permanent physical profile rating of 3 or 4, a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade, or a medical examination that warranted his entry into the PDES. Referral into the Army PDES requires a designation of "unfit for duty" before an individual can be separated from the military because of an injury or medical condition. 3. The VA granted the applicant an 80 percent service-connected disability rating for De Quervain's tenosynovitis, right wrist scar with residual paresthesias/dysesthesia, right knee patellofemoral pain syndrome and left knee patellofemoral pain syndrome. The fact that the VA granted him a service-connected disability rating for various medical conditions after his release from active duty does not prove an error on the part of the Army at the time of his separation. A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement" from the Army. The VA awards ratings because a medical condition is "service connected" and affects the individual's civilian employability. Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 4. The evidence shows the applicant was appropriately discharged from the ARNG at his ETS. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ____x___ ____x___ 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. _______ _ _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) AR20150004842 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004842 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1