IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150007285 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 IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150007285 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. IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150007285 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, a medical retirement in lieu of his honorable discharge. 2. The applicant states: a. He was serving in the U.S. Army Reserve (USAR), when he was injured on 10 March 2001 in a motor vehicle accident while performing his job as a State of Ohio Corrections Officer at the Grafton Corrections Center. His body was severely crushed and he was carried on the sick roster by the USAR until 2008, when he received an honorable discharge. b. He was placed on disability and social security from his State of Ohio job in 2002; he is still unable to work at this time. c. He was not able to do undergo a physical with the USAR because his unit was de-activated after redeploying from Afghanistan. d. He was not given the opportunity to properly process through a medical evaluation board (MEB). He has spent years trying to get in touch with his unit but to no avail. He strongly feels he is entitled to military retirement consideration. e. He enlisted in the military in June 1980 in the State of Alabama. He served in the Alabama National Guard (ALARNG) from February 1982 until September 1988. He was discharged from active duty in September 1992. f. His psychiatrist and psychologist states his mental condition is a direct result of his military service. g. The Department of Veterans Affairs (VA) has been unable to locate his medical records; however, he went on sick call and was treated for shoulder, back and foot injuries. He currently has a 10 percent disability rating from the VA for hearing loss. 3. The applicant provides: * DD Forms 214 (Certificate of Release or Discharge from Active Duty), for the periods ending 12 August 1992 and 12 September 1984 * Two RI (Retirement & Insurance) Forms 20-97 (Estimated Earnings During Military Service), undated * DA Form 4980-18 (Army Achievement Medal Certificate), annotated as Permanent Order Number 344-002, issued by Headquarters, 319th Quartermaster Battalion, for outstanding achievement from 11 August to 13 August 2000 * DA Form 4872 (Certificate of Promotion) promoting him to the rank of sergeant on 9 December 1996 * DD Form 256A (Honorable Discharge Certificate) discharging him from the U.S Army on 2 October 2007 * DA Form 2166-7 (NCO Evaluation Report), back page only with thru date of November 1997 * an extract of his DA Form 2-1 (Personnel Qualification Record – Part II) * an extract of his VA Form 21-526 (Veteran's Application for Compensation and/or Pension), dated on or about 14 September 2010 * a memorandum from the VA, dated 7 February 2011, subject: Formal Finding of Service Treatment Records * an extract of his VA Rating Decision, dated 21 July 2011 * three page document from his psychiatrist, subject: Workman's Compensation Case, dated 30 September 2011 * one page document that lists his psychologist's name and phone number * five page document from his chiropractor, dated 25 November 2011 * 13 pages of medical Progress Notes from the Cleveland VA Medical Center, printed 29 April 2014 * an extract of his VA Decision letter, dated 3 December 2014 * an extract of his VA Decision letter, dated 17 December 2014 * seven pages of medical documents from the South Pointe Hospital, dated 19 March 2015 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 enlisted in the Regular Army on 23 September 1980. After his initial entry training, he was awarded military occupational specialty (MOS) 13B (Cannon Crewmember). He was honorably released from active duty by reason of expiration of term of service (ETS) on 12 September 1984 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). 3. He enlisted in the ALARNG and held MOS 63H (Track Vehicle Repairer) from 27 September 1984 until 17 March 1988, when he was honorably discharged. He reenlisted in the Regular Army on 18 March 1988. 4. He was honorably discharged on 12 August 1992, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 16-8, by reason of convenience of the government – Fiscal Year (FY) 1992 early transition program. The DD Form 214 he was issued shows he competed 4 years, 4 months, and 28 days of net active service. 5. After a break in service, he enlisted in the USAR on 23 November 1994. 6. On 10 March 2001, while working in his civilian capacity as a Corrections Officer for the Grafton Corrections Center in Ohio, he was involved in a serious motor vehicle accident. He was subsequently air evacuated to the Cleveland Metropolitan Hospital Trauma Center with numerous life-threatening injuries. It does not appear these injuries were sustained during a military duty period, as there is no record of a line of duty investigation that shows these injuries were incurred in the line of duty while performing military training or traveling to or from his place of military duty to his home. 7. Orders 02-037-045, issued by Headquarters, 88th Regional Support Command, Fort Snelling, Minnesota on 6 February 2002, released him from his current unit assignment by reason of unsatisfactory participation and assigned him to the USAR Control Group (Reinforcement) effective 21 February 2002. 8. Orders D-10-721061, issued by U.S. Army Human Resources Command (HRC), St. Louis, Missouri on 2 October 2007, honorably discharged him from the USAR on 2 October 2007. 9. His records are void of evidence that would indicate either a MOS Medical Retention Board (MMRB) or a Fitness for Duty Determination Board (FFDDB) considered his fitness for further service prior to his discharge from the USAR. 10. In the processing of this case, an advisory opinion was obtained on 30 September 2015, from the Medical Evaluation Board (MEB) Psychologist and Psychiatrist, Kimbrough Ambulatory Care Clinic, Fort Meade, Maryland. These officials opined that: a. Per review of his record, the applicant has two primary conditions that should be considered: lower back pain and post-traumatic stress disorder (PTSD). b. His lower back pain is presumed to be not in the line of duty. His medical documentation shows, during his time as a member of the USAR, he primarily worked as a Corrections Officer for the Grafton Corrections Center in Ohio. (1) On 10 March 2001, while working in his civilian capacity transporting a prisoner, the vehicle he was driving was hit broadside by a larger vehicle travelling at a high rate of speed. He was subsequently air evacuated to the Cleveland Metropolitan Hospital Trauma Center, where he was noted to have a traumatic pneumothorax, a lacerated liver and injuries to his shoulder and cervical, thoracic and lumbar spine. (2) After his release from the hospital, he was initially treated conservatively with narcotic medications and aquatic and physical therapies. He underwent reconstructive spine surgery in January 2008, though reportedly had a less than optimal outcome with continued back pain and lower extremity radicular symptoms. He was re-evaluated by neurosurgery in March 2011 for a second opinion. The surgeon advised that he would need to lose 50-70 pounds in order to qualify for surgery. (3) In April 2014, he completed a Back Disability Benefits Questionnaire (DBQ) at the Cleveland VA. Though he reported his back pain began in 1991, there are no available records to indicate he received care for this condition while on active duty orders. The VA examiner determined that his back pain was a result of his 2001 accident. c. His PTSD is presumed to be not in the line of duty. His medical documentation is silent for any behavioral health (BH) visits while on active duty or serving in the ARNG or USAR. He was injured while serving as a Corrections Officer for the State of Ohio in March 2001. Available records indicate he was diagnosed with PTSD based on his injury suffered on 10 March 2001. Other records indicate he developed chronic depression following his injury in March 2001, and has taken the following medications: Cymbalta, Wellbutrin, and Lunesta. Available records do not support that he was on active duty orders for the U.S. Army at the time of injury. His PTSD is not caused by or a result of military service. d. The applicant received an honorable discharge from the USAR. His injuries and illnesses did not occur while he was on active duty and these conditions are not considered to have incurred in the line of duty. He was not eligible for processing through the Physical Disability Evaluation System (PDES), which is reserved for service members on active duty or with duty-related conditions. He could have requested a referral to the physical evaluation board (PEB) under the non-duty related process for a determination of fitness only, per Army Regulation 40-501 (Standards of Medical Fitness), chapter 9-12. 11. The applicant was provided a copy of the advisory opinion on 14 January 2016. He responded to the advisory opinion on 10 February 2016, by stating he experienced back and shoulder injuries during active duty service in 1991 and 1992 at Fort Polk, Louisiana. He provides three medical documents, dated February and March 1991, and May 1992, which shows treatment for left arm soreness, lower back pain, and ankle pain. He also states he is only asking for the Board's consideration of these injuries because the doctors that treated him prior to his 2001 accident suggested he should. 12. The applicant provides: a. VA Form 21-526, submitted on or about 14 September 2010, for a claim for compensation for PTSD that began in 2003, and a shoulder injury and back injury that both began in 1982. A letter from the VA on 7 February 2011, stated his service treatment records were unavailable for review and requested evidence of his claim. b. An extract of his VA Rating Decision, dated 21 July 2011, that stated the following conditions were not service connected and not subject to compensation: should injury, back injury, and PTSD. c. A letter from his psychiatrist, subject: Workman's Compensation Case, dated 30 September 2011, which assessed the applicant's PTSD and depression, which was related to his industrial accident [presumed to mean his motor vehicle accident], had reached its maximum medical improvement. d. A five page document from his chiropractor, dated 25 November 2011, stated the applicant is unable to perform any substantial, gainful employment and should be considered permanently and totally disabled as a result of his motor vehicle accident and his failed 2008 lumbar spine surgery. e. Approximately 20 medical documents, dated 2014 and 2015, which show the applicant was examined and his history of injuries to include his back and shoulder pain. f. VA decision letters, dated 3 and 17 December 2014 respectively, which state his claims for anxiety and sleep apnea were not related to or caused by his military service, thus no compensation could be granted. 13. A review of his record does not contain nor does he provide a complete VA rating decision document that defines any disability rating he received or the conditions to which the rating is determined. REFERENCES: 1. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. a. Paragraph 9-10 provides for the disposition of medically unfit Reservists. Normally, Reservists who do not meet the fitness standards set by chapter 3 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 with non-duty related medical conditions who are pending separation for not meeting the medical retention standards (emphasis added) of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9-12. b. Paragraph 9-12 states Reserve Component (RC) Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards (emphasis added) of chapter 3 are eligible to request referral to a PEB for a determination of fitness. Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required and cases are not sent through the PEB liaison officer at the medical treatment facilities. Once a Soldier requests in writing that his case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USAR Regional Support Command or the Army Human Resources Command Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 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 provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is effected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. The disabling condition must have been incurred or aggravated while the Soldier was entitled to basic pay. a. Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his office, rank, grade or rating. The Army must find that a Solider is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. b. Paragraph 3-2b provides for retirement or separation from active service. This provision of regulation states that disability compensation is not an entitlement acquired by reason of service incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. The regulation also states that, when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit. 3. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Paragraph 16-8, in pertinent part, stated that when authorization limitations, strength restrictions, or budgetary constraints require the size of the enlisted force to be reduced, the Secretary of the Army, or his designee, would authorized voluntary or involuntary early separation under the authority of Title 10, U.S. Code, sections 1174 or 1175. The Commander, U.S. Total Army Personnel Command, would implement this program by issuing separation instructions pertaining to a specific class or category of Soldiers. Early separation under this paragraph was for the convenience of the government and an honorable characterization of service was given. 4. Title 10, U.S. Code, section 1201 (10 USC 1201), provides for the physical disability retirement of a member who has at least 20 years of qualifying service or a disability rated at least 30 percent. 5. Title 10, U.S. Code, section 1203 (10 USC 1203), provides for the physical disability separation with severance pay of a member who has less than 20 years of qualifying service and a disability rated less than 30 percent. 6. Title 10, U.S. Code, Section 12731a, enacted the early qualification for retired pay at age 60 to reduce the number of service members in certain grades who possess certain skills and for service members found medically disqualified for retention in the USAR on or after 5 October 1994. Under this provision, service members who complete at least 15 but less than 20 years of qualifying service and are deemed excess to the needs of the service or are medically disqualified for retention are eligible to receive retired pay at age 60. The amount of retired pay is based on the total number of qualifying years of service at time of removal rather than the 20 years normally required. Only Soldiers who transfer to the Retired Reserve as a result of the medical disqualification are entitled to receive this benefit. DISCUSSION: 1. The applicant's request for medical retirement in lieu of his honorable discharge was carefully considered. 2. To be considered for possible medical separation or retirement under the PDES, the Army must find that a Soldier is physically unfit to reasonably perform the duties associated with his rank, grade or specialty and assign an appropriate disability rating. A disability rating assigned by the Army is based on the level of disability at the time of the Soldier’s separation and can only be accomplished through the PDES. 3. The applicant contends that he should be entitled to a medical retirement due to the injuries he sustained as a result of his 2001 civilian motor vehicle accident. He further states he was not able to undergo a physical examination as his unit was unavailable due to its deployment and was then de-activated upon its return. 4. Despite the fact that he suffered serious injuries in a motor vehicle accident in 2001, while in the performance of his civilian employment duties for the State of Ohio, there is no evidence these injuries were incurred in the line of duty for the purpose of military service. Absent an approved line of duty determination, he would not have been eligible to request referral to a PEB; without a referral to a PEB, he would not have been eligible for medical retirement (emphasis added). 5. In 2002, he was released from his USAR unit due to unsatisfactory participation and transferred to the USAR Control Group. He was honorably discharged from the USAR on 2 October 2007. There is no evidence in his records, and he did not provide any evidence, which shows he suffered from any illness or an injury at the time of his discharge that rendered him unable to perform the duties required of his grade and military specialty, or that would have warranted his entry into the PDES. Nor is there evidence to show he requested a medical evaluation for a fitness-for-duty determination based on his injuries incurred while in the performance of his civilian duties. 6. There is a presumption of regularity in the conduct of government affairs. There is no evidence of error or injustice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150007285 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007285 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2