IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008567 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: 22 March 2016 DOCKET NUMBER: AR20150008567 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. Enclosure 1 IN THE CASE OF: BOARD DATE: 22 March 2016 DOCKET NUMBER: AR20150008567 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 his records to show he was medically retired instead of separated upon his expiration of his term of service. 2. The applicant states he was denied a medical retirement and returned to duty by a physical evaluation board (PEB). He was not unable to perform his military duties and his medical records support this fact. After his separation the Department of Veterans Affairs (VA) rated him 100 percent permanently disabled due to service-connected medical conditions. He was told that his PEB was the final action and nothing more could be done. He recently learned he could appeal to this Board. 3. The applicant provides copies of – * his Enlisted Record Brief (ERB) * his 13 December 2008 DD Form 214 (Certificate of Release or Discharge from Active Duty) * a 30 September 2007 Leave and Earning Statement (LES) * a 14 September 2007 Physical Profile with two pages of medical records * a 15 February 2008 Physical Profile * 22 June 2007 DD Form 2808 (Report of Medical Examination) * 22 June 2007 DD Form 2807-1 (Report of Medical History) * Medical Evaluation Board (MEB) check list * 21 September 2007 MEB Proceedings * a PEB referral * Army Physical Fitness Test (APFT) Scorecard * 26 October 2007 DA Form 2648 (Preseparation Counseling Checklist for Active Component Service Members) * a 2 February 2009 VA disability decisional document * a 28 January 2014 VA rating decision * 14 pages of service medical records 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. With prior service in the U. S. Air Force and U.S. Army Reserve, the applicant enlisted in the Regular Army on 1 August 1997. He completed training and was awarded military occupational specialty 68Q (Pharmacy Specialist). 3. On 14 September 2007, the applicant received a permanent physical profile for obstructive sleep apnea, chronic low back pain and migraine headaches. He received a 3 for physical capacity or stamina and for his lower extremities. The noted limitations were – * no running, jumping, marching * no ruck sack or waring of load bearing equipment (LBE) * no constructing an individual fighting position * not able to complete 3-5 second rushes under direct or indirect fire * no deployment where availability to electricity is limited, requires constant positive airway pressure (CPAP) * no duty after 1800 4. On 21 September 2007 after a comprehensive medical examination, an MEB reviewed the applicant's medical records and rendered a finding on the following medical diagnoses and their date of origin – * obstructive sleep apnea requiring a CPAP (2005) * lower back pain due to degenerative disc disease (2005) * migraine headaches for past 8 years (1999) * atypical chest pain – found to be medically acceptable (2007) * insomnia – found to be medically acceptable (2007) 5. The MEB shows he did not present views on his own behalf and he did not desire to continue on active duty. The applicant disagreed with the MEB findings and appealed. The appeal was denied. The MEB findings were approved and the case was referred to the PEB. He acknowledged that he had reviewed the MEB, its narrative summary and physical profile. He also indicated he understood that the PEB may determine that some or all of the diagnoses shown on his MEB could result in a finding of fitness for duty. He certified that the MEB accurately covered all his diagnoses. 6. On 25 October 2007, the applicant’s company commander recommended favorable consideration for a determination of unfitness for duty and separation as a result of his physical limitations and conditions because he was incapable of performing his duties as a pharmacy technician. His chronic low back pain prevented him from standing for long periods of time which is normally required for his MOS. His sleep apnea impacted the moral and readiness of his unit/duty section because of his frequent tardiness. 7. The PEB proceedings initiated on 5 November 2007 found the applicant physically fit and returned him to duty. The PEB disability description stated: Soldier can perform his PMOS [primary MOS] despite his medical conditions of obstructive sleep apnea, low back pain, and migraine headaches. His sleep apnea and back pain have existed since 2005 and his headaches since age 7. His NCOERs [noncommissioned officer evaluation reports] are outstanding, and he is authorized to perform an alternate APFT aerobic event. His Company Commander does not recommend retention, however, his rater and senior rater state on his NCOERs that his performance is outstanding. 8. The applicant did not concur with the PEB findings and decision but waived his right to a formal hearing after conferring with his appointed attorney. (He did not provide a written appeal.) 9. On 28 January 2008, the U.S. Army Physical Disability Agency (USAPDA) approved the PEB findings: a. That the applicant had been found physically fit to perform the duties of his office, grade, rank and MOS and is deployable within the limitations of his profile. b. The findings of fit for duty are based on the preponderance of evidence provided by the PEB. The mere presence of an impairment does not, of itself, always justify a finding of unfitness. The PEB provided detailed rationale regarding why the Soldier was found fit for duty. 10. Also on 28 January 2008, the USAPDA noted the applicant's disagreement with the findings of the PEB and reviewed his entire case. The Agency's conclusion is that the applicant's case was properly adjudicated by the PEB which correctly applied the rules that govern the Physical Disability Evaluation System (PDES) in making its determination. The findings and recommendations of the PEB are supported by substantial evidence and are therefore affirmed. 11. On 27 February 2008, the applicant received a second permanent physical profile that continued the prior profile findings and restrictions. It also noted the PEB findings of fitness for duty and that the applicant was not deployable. 12. The applicant was discharged on 13 December 2008 due to completion of required active serve. He had 12 years, 1 month, and 23 days of total active service with 2 years, 3 months, and 13 day of inactive service. 13. The applicant received six NCOER's commencing in March 2004. With the exception of the last NCOER (December 2007 – November 2008), the applicant was rated as among the best and recommended for promotion ahead of his peers for the first three periods and fully capable and "promote with peers" on the next two NCOERs. It was noted on all six NCOERs that the applicant passed the APFT or modified APFT. 14. His last annual NCOER for the period 1 December 2007 through 30 November 2008 was completed on 18 December 2008. As the applicant had separated from the service, he was not available to sign it. The rater/senior rater evaluations are as follows: a. His rater noted the applicant needed improvement in all areas, considered him to be a marginal performer and did not recommended him for promotion. The rater offered the following comments – * lacks personal integrity to do what is right legally and morally * is loyal to no one but himself * showed none of the Army values * unable to perform duties as a pharmacy technician * routinely failed to meet given suspense’s and to complete tasks in the prescribe manner * profile hinders duty performance * does not present the image or bearing of an NCO * cannot be trusted to train or work with Soldiers; displays extreme apathy * Soldier is not motivated * repeatedly missed formations; set a poor example for Soldiers * his failure to report jeopardized the unit's overall mission * cannot be trusted with personnel or equipment; consistently places self ahead of Soldiers and mission b. His senior rater marked him as fair in both performance and potential: * do not promote * does not have the competencies or the qualities to perform at the next higher grade * refuses to take responsibility for his actions * NCO not available for signature 15. The limited service medical records reflect the applicant's medical conditions both before and after his MEB/PEB. There does not appear to be any indication of a worsening of his conditions in the period after the MEB/PEB. 16. The applicant filed for VA disability benefits on 25 December 2007 with the VA granting, on 2 February 2009, his disability evaluation for the following conditions effective the date of his discharge: Medical Condition Percent (%) Obstructive sleep apnea 50% Major depressive disorder with history of alcohol abuse now in remission, also claimed as insomnia 50% Migraine headaches 30% Right bicipital tendonitis, claimed as shoulder bursitis 10% Lumbar spine degenerative disc disease claimed as lumbago 10% Left plantar fasciitis 10% Right plantar fasciitis 10% Tinnitus 10% Hypertension 0% Hemorrhoids 0% Pseudofolliculitis barbae 0% Pes planus (flat feet) denied Total disability evaluation 90% 17. On 27 January 2014 the VA increased his combined service-connected disability rating to 100%. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and set 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. Separation or retirement by reason of disability requires processing through the PDES. The regulation states: 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, and provide prompt disability processing while ensuring 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 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB, when a Soldier receives a permanent medical profile, P3 or P4, and is referred by an MOS Medical Retention Board (MMRB), when they are command-referred for a fitness-for-duty medical examination, and or they are referred by Army Human Resources Command. c. The PDES 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. Service 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. d. The mere presence of an 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. e. 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. 2. Army Regulation 600-60 (Physical Performance Evaluation System), implements and established operating procedures for the PDES. The purpose of the PDES is to maintain a quality force by ensuring that Soldiers are physically qualified to perform their primary MOS or specialty code worldwide and under field conditions. A Soldier found fit by a PEB may have assignment or duty restrictions that affect how the Soldier is deployed. However, the Soldier will be considered deployable within the limits of the Soldier’s profile. 3. Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay. 4. Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. DISCUSSION: 1. The applicant's last NCOER shows he had a significant negative attitude and work inefficiency. Of the negative comments, only one relates to medical factors that could possibly indicate a medical impairment being a factor in his duty performance and it only states that his profile hindered (not prevented) his duty performance. 2. The MEB addressed five diagnoses with two of the diagnosis as medically acceptable. The case was referred to the PEB for the diagnoses of sleep apnea, lower back pain due to degenerative disc disease, and migraines. 3. After the MEB but before the PEB, the applicant's company commander submitted a statement indicating that the applicant's medical conditions were rendering him unfit to perform his duties as a pharmacy technician and recommended medical separation. 4. The PEB members took this statement into consideration but determined that because the applicant's cumulative NCOER's did not indicate that his medical conditions prevented him from performing his assigned duties over an extended period of time, he was considered fit for duty. This determination was upheld by the USAPDA. 5. His second physical profile, issued after the PEB based on the finding of fitness for duty, states that the applicant was not deployable due to his sleep apnea and its requirement for electricity to operate a CPAP and physical limitations related to his lower back pain. 6. The service medical records provided by the applicant do not show a significant change in the applicant's medical conditions after the PEB and prior to his separation. 7. While both the Army and the VA use the VA Schedule for Rating Disabilities (VASRD), at the time not all of the general policy provisions set forth in the VASRD apply to the Army. The Army rates only conditions which are determined to be physically unfitting for further military service thereby compensating the individual for the loss of his or her military career. The VA may rate any service-connected impairment, thus compensating for medical conditions that reduces or impairs the social or industrial adaptability of the individual concerned. Therefore, at the time in 2008 it was not unexpected that these two different systems would produce different evaluations. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation. The Army must find a member physically unfit before he can be medically retired or separated. The fact that the VA, in its discretion, has awarded the applicant disability ratings and thus compensation is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes nor does it show an error in the processing of his case through the PDES. 8. The applicant’s rights were protected throughout the processing through the PDES to include his appeal of his PEB to the USAPDA. Upon appeal, the USAPDA affirmed the findings of the PEB and he was returned to duty though with duty restrictions as documented in his physical profile. The applicant has not provided evidence to show an error or an injustice in the processing of his case through the PDES. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150008567 Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20150008567 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2