IN THE CASE OF: BOARD DATE: 3 March 2016 DOCKET NUMBER: AR20150008572 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, her honorable release from active duty (REFRAD) be changed to a disability retirement. 2. The applicant states that: a. She was injured while on active duty. She had several surgeries after her unit returned to Fort Benning, Georgia. She remained there for over a year after her unit left. She requested retirement because she could no longer perform her duties. She never returned to her unit or to a civilian job. b. She was REFRAD on 29 April 2005 and was granted 60% disability on 30 April 2005. c. She is now a 100% disabled veteran and on social security. She has three minor children and needs the additional income and benefits. 3. The applicant provides copies of a– * memorandum showing she returned from the theater and reported to the 2145th Garrison Support Unit at Fort Benning, GA, on 12 April 2004 * two DA Forms 2173 (Statement of Medical Examination and Duty Status), dated 21 September 2004 * Medical Department Activity, Fort Benning, GA, memorandum, dated 5 April 2005 showing she would be retained for medical processing * U. S. Army Human Resources (HRC) memorandum, subject: Approved Line of Duty (LOD) Investigation, dated 19 April 2005 * U. S. Army Medical Department Activity, Fort Benning, GA, memorandum, subject: Clearance from Case Management Tracking * her REFRAD orders, dated 29 April 2005 * her DD Form 214 ending 29 April 2005 * U. S. Army Reserve Command (USARC) Form 46-2-R (Military Physician's Statement for Soldier's Incapacitation/Fitness for Duty)(2005) * Veterans Administration Medical Center (VAMC) letter, dated 26 September 2005 * VA rating decision documents 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 is a retired U. S. Army Reserve (USAR) major/O-4. 3. Her records show she was retained on active duty effective 29 April 2004 to report to U. S. Army Garrison, Fort Benning, GA, for a period of 179 days for completion of medical care and treatment. These orders were amended to show active duty until 1 April 2005. 4. In support of her request, the applicant provided: a. A DA Form 2173, dated 21 September 2004, showing an examination on 5 February 2004 at Martin Army Community Hospital revealed she had masses on her right shoulder, back, and two masses on her right buttock. The details indicate she was deployed to Kuwait from April 2003 to April 2004. She started having pain and tenderness in her right shoulder, back, and right buttock. The masses were surgically removed and she was referred to dermatology for scar removal. The determination was in LOD. b. A DA Form 2173, dated 21 September 2004, shows she was examined at Martin Community Hospital on 27 April 2004 for lower back pain. The details show she started experiencing an infrequent lower back pain while standing during any movement in January 2004. She was evaluated and it was noted that the cervical spine had narrowing at the C5-6 disc space and mild convex dextroclosis of the thoracic spine. She was being seen by a chiropractor for improvement; with the possibility of surgery. c. A 5 April 2005 Headquarters, U. S. Army Medical Department Activity, memorandum, subject: Medical Retention Processing Program reports: (1) Current Diagnosis: Stress Urinary Incontinence-Documented by Urodynamics. (2) Current Treatment Plan: The applicant was to be conservatively treated with pelvic floor rehabilitation therapy. Within 6 weeks she would be reevaluated to determine efficacy of the treatment. The total treatment would be 8-12 weeks (1 treatment per week). This treatment could be long term relief without the need for surgery. If the pelvic floor rehabilitation was judged to be not effective, Sparc Sling surgery would be recommended. The surgery was scheduled for 27 April 2005. The recovery time would be approximately 6 weeks. d. A 19 April 2005 HRC memorandum, subject: Completed Approved LOD Investigation, forwarded an approved LOD pertaining to the applicant to the Commander, 81st Regional Readiness Command. The memorandum reported that: (1) The applicant had a medical condition that could possible require future follow-up care. She had remained on active duty to complete the medical care and had been REFRAD and was being returned to the addressee's control. (2) The applicant could apply for incapacitation pay through her unit, however an active duty medical extension (ADME) was not an option for Soldiers with medical conditions that occurred while on active duty in support of the Global War on Terrorism (GWOT). Soldiers who were not offered Medical Retention processing at the time of REFRAD may ask to be returned to active duty under Medical Retention Processing 2 (MRP2) through their Reserve Component chain of command. (3) If the Soldier chooses the MRP2 option they will be ordered to active duty at an active Army installation that can treat their current medical condition. They will not remain at home station if they are approved to return to active duty under this process. If they do not choose the MRP2 option they are only entitled to follow-up medical care for their LOD medical condition. e. Orders 119-2287, Headquarters, U. S. Infantry Center, Fort Benning, GA, dated 29 April 2005, show the applicant was REFRAD, not by reason of physical disability, effective 29 April 2005. f. DD Form 214 shows she was REFRAD due to completion of required active service on 29 April 2005 as a MAJ. She had completed 2 years, 2 months, and 20 days of active duty service during the period covered by the DD Form 214. g. A USARC Form 46-2-R, dated 10 June 2005, shows: (1) the applicant was examined on 10 June 2005 by a physician at Keesler Air Force Base and found not fit to perform neither her military duties nor her civilian duties from 27 April 2005 to an unknown date. (2) The Diagnosis and Prognosis shows she had been treated at the hospital and her prognosis was good pending a urology follow-up. h. A 26 September 2005 letter reports she was followed in the Urology Clinic at Jackson VAMC. She had undergone a pubovaginal sling on 27 April 2005. Since the surgery, she had urinary retention requiring a suprapubic catheter placement. She had failed all conservative treatment and would need a surgical procedure called an urethroliasis which was scheduled for 20 October 2005. i. VA Rating Decision documents showing she has been rated as 100% disabled by the VA. 5. Her record contains Orders 07-116-0004, Headquarters, 81st Regional Readiness Command, dated 26 April 2007, showing she was released from her current assignment and reassigned to the Retired Reserve as a MAJ effective 30 April 2007. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 her or her office, grade, rank, or rating. 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/or severance pay benefits: * 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 for training * 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 7. Title 10, U.S. 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. 8. Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), as amended, 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. 9. 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 Army disability rating is to compensate the individual for the loss of a military career. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant was REFRAD after receiving medical treatment. 2. While the applicant was extended on active duty for medical treatment, there is no available evidence showing she was found to be unable to perform her military duties while on active duty because of a condition(s) that was incurred or aggravated while on active duty. 3. Following her REFRAD she received further medical treatment and ultimately was found to be unfit to perform her military duties, or civilian duties, by a physician on 10 June 2005 4. The VA service-connected disability compensation is strictly a VA benefit paid to a veteran because of injuries or diseases that occurred while serving on active duty or were made worse by active military service. While the Army only rates those medical conditions that result in the Soldier being determined unfit for continued military service, the VA generally rates a Soldier for all conditions incurred in or aggravated by military service. The Army and the VA disability evaluation systems are independent of one another. Only those conditions that render a member unfit for continued military duty will be rated by a physical evaluation board (PEB). However, the VA can rate all service-connected conditions. 5. In view of the above, there is insufficient evidence to grant the applicant's request. 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) AR20110016871 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008572 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1