IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150005486 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: 23 August 2016 DOCKET NUMBER: AR20150005486 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 affording him processing through the Integrated Disability Evaluation System to determine if he should have been separated for disability. a. 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 the PEB process. All required reviews and approvals will be made subsequent to PEB completion. b. Should a determination be made that the applicant should have been separated under the disability system, 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 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 changing the reason and authority for his separation without benefit of evaluation under the disability evaluation system. _____________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: 23 August 2016 DOCKET NUMBER: AR20150005486 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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired by reason of disability instead of honorably discharged by reason of completion of required service. 2. The applicant states he was assigned a reentry (RE) code of 1 which means he is 100 percent physically fit for reentry into military service. He wants this code changed to accurately reflect his disability status that should have been annotated before his honorable completion of service. His active duty medical records warrant consideration by a physical evaluation board (PEB) and a military medical discharge board. No such action was initiated by his command. Had his disabilities been properly annotated and handled, he would have received a proper evaluation and recommendation for permanent medical retirement. 3. The applicant provides a compact disk that contains his electronic service medical records (Chronological Records of Medical Care). CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 12 May 2004 and he held military occupational specialty (MOS) 19D (Cavalry Scout). He served through two reenlistments, the last of which was for 4 years and 2 months, executed on 29 November 2009, establishing his expiration term of service (ETS) date as 28 December 2013. 2. He served in a variety of assignments and locations including Afghanistan from 18 September 2008 to 25 February 2009, 18 August 2009 to 9 August 2010, and 21 June 2012 to 17 March 2013. He was promoted to sergeant/E-5 on 1 July 2012. 3. His last Noncommissioned Officer Evaluation Report (NCOER) covered 12 months of rated time from 1 July 2012 through 30 June 2013 for his duties as assistant operations noncommissioned officer in duty MOS 19D. * his rater rated his performance as "Success" or "Excellence" and his potential as "Fully Capable" * he passed the Army Physical Fitness Test and met the height/weight standards * his senior rater rated his performance as "Successful" and his potential as "Superior" 4. On 7 June 2013, his physician assistant issued him a temporary physical profile of P3 for concussions. It indicated that a member who sustained three diagnosed concussions within a 12-month period must undergo a recurrent concussion evaluation. The profile shows: * he could not perform any of the 10 functional Soldier activities * the recovery period depends on clinical presentation * recovery care includes uninterrupted sleep and pain management * all sports and other activities with risk of concussion are prohibited until cleared * the approving authority signature block is blank (not signed by the next level medical officer) * his fully mission capable projected date was 5 September 2013 5. He was honorably discharged from active duty on 28 December 2013, his ETS date. His DD Form 214 shows he was discharged in accordance with chapter 4, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) by reason of completion of required active service. It also shows: * he completed 9 years, 7 months, and 17 days of active service * he was assigned separation code KBK and RE code 1 * his awards include the Combat Action Badge 6. The applicant provided this Board his service-related Chronological Records of Medical Care, which were forwarded to The Office of The Surgeon General (OTSG) for review. OTSG rendered an advisory opinion on 8 July 2016. An OTSG official referenced the Diagnostic and Statistical Manual-5th Edition; AR 40-501 (Standards of Medical Fitness), with revision, dated 4 August 2011; and AR 635-200, dated 6 September 2011. The official stated, in effect: a. The applicant entered active duty on 12 May 2004 and received an honorable discharge on 28 December 2013 in accordance with AR 635-200, Chapter 4 (Completion of Required Active Service). He deployed to Afghanistan three times. He contends that while still on active duty his medical records reflected disabilities which warranted a medical evaluation board (MEB) and possible PEB with a potential medical discharge. OTSG was asked to determine his eligibility for a medical retirement based on a behavioral health (BH) condition. This opinion is based on the information provided by the Board and records available in the Department of Defense (DOD) electronic medical record (AHLTA). b. He reported no problems subsequent to his first two deployments. Records indicate that on 5 October 2012, he sustained an improvised explosive device (IED) blast injury. He was diagnosed with tinnitus and a concussion but no focal findings. A magnetic resonance imaging (MRI) conducted on 16 May 2013 revealed "mild axonal injury and an acute intracranial abnormality." He was evaluated by the traumatic brain injury (TBI) clinic and referred to occupational therapy who developed a comprehensive treatment plan that remained in effect until the time of his discharge. c. It is unclear whether or not he met Army physical fitness retention standards at the time of his separation. However, the fact that he was in active treatment for a TBI suggests that he should have been referred for an MEB to determine his eligibility for a medical separation or retirement. 7. The applicant was provided a copy of this advisory opinion. He did not respond. REFERENCES: 1. AR 635-200 provides the basic authority for the separation of enlisted personnel. Chapter 4 provides for separation of enlisted personnel by reason of completion of required active service. 2. 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 (HRC), is responsible for administering the Disability Evaluation System and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD and service regulations (AR 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 disability system: * when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced by an MEB * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, HRC c. The disability 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. 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 service members who retire based upon disability receive monthly military retirement payments as allowed by law, 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. 3. AR 635-40 establishes the disability 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 or her 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 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. 4. 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, disabilities are rated using the Veterans Affairs Schedule for Rating Disabilities. a. Chapter 3 lists 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. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties; may compromise or aggravate the Soldier's health or well-being if he or she were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual were to remain in the military Service. Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB. b. Paragraph 3-30 (Neurological Disorders), includes any other neurologic conditions, regardless of etiology, when after adequate treatment there remains residual symptoms and impairments such as persistent severe headaches, uncontrolled seizures, weakness, paralysis, or atrophy of important muscle groups, deformity, un-coordination, tremor, pain, or sensory disturbance, alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty. DISCUSSION: 1. The applicant served on active duty from 12 May 2004 to 28 December 2013. He served in Afghanistan during three separate deployments. He reported no problems subsequent to his first two deployments. However, his records indicate on 5 October 2012 he sustained an IED blast injury. He was subsequently diagnosed with tinnitus and a concussion but no focal findings. An MRI conducted on 16 May 2013 revealed "mild axonal injury and an acute intracranial abnormality." He was evaluated by the TBI clinic and referred to occupational therapy who developed a comprehensive treatment plan that remained in effect until the time of his discharge. 2. His NCOER clearly shows he performed his duty MOS to standard and on his ETS discharge date, he was fully eligible to reenlist. Nothing at the time prevented him from continuing his service and receiving treatment, or disability processing, if he had a medical condition that prevented him from performing the duties required by his MOS and grade. His temporary physical profile is incomplete (not signed by an approving medical officer) and his comprehensive concussion evaluation is not available for review. 3. Although it is unclear whether or not he met retention standards at the time of his separation, the fact that he was in active treatment for a TBI suggests that he should have been referred for an MEB prior to his separation. While it would be premature to medically separate him for a disability based solely on the available evidence, it appears his medical condition may have warranted referral to an MEB. The only way to determine if he met retention standards and, if not, if he was unfit for continued service at the time of separation is to refer his case to the disability evaluation system for review. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005486 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005486 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2