IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150008753 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: 7 April 2016 DOCKET NUMBER: AR20150008753 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: 7 April 2016 DOCKET NUMBER: AR20150008753 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 reconsideration of his request for review of his military records by a Medical Evaluation Board (MEB) and/or Physical Evaluation Board (PEB) to show he was permanently retired due to physical disability. 2. The applicant states that he would like to address the evidence that led to the decision rendered by the Army Board for Correction of Military Records (ABCMR) in his case. He has contacted the U.S. Army Human Resources Command, Fort Knox, KY, and the National Personnel Records Center, St. Louis, MO, to obtain copies of his military personnel records. He has been informed that they do not have his records. He adds that it is as if he never served in the military and he is not sure what records the Board relied upon during its deliberations. a. He states that his Noncommissioned Officer Evaluation Report (NCOER) with a "Thru" date of January 1996 that the Board reviewed was completed a few months before he had his first seizure. b. The Board noted that the mere presence of impairment does not in itself justify a finding of unfitness because of physical disability. However, the Board did not address the responsibilities of the various commanders (i.e., familiarity with the purpose of the Army's Physical Disability Evaluation System (PDES), prompt evaluation of a Soldier's medical condition, annotating physical defects that impact his duty performance in medical records and on the NCOER, referral to the PDES for processing, etc.). He adds that none of his commanders discussed his medical condition with him or his referral to the PDES. c. The applicant refers to Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 2 (Responsibilities and Functions), paragraph 2-9 (Unit commander), which outlines the commander's responsibilities regarding the PDES. (He provides a summary of the paragraph.) d. He states his command did contact the medical treatment facility (MTF) to "initiate chapter paperwork" while he had on-going medical issues (i.e., seizures and a shoulder dislocation). The DD Form 2697 (Report of Medical Assessment) he prepared for his separation physical examination shows the medical official noted that he was unable to do any pushups or overhead lifting. He asserts that his condition was grounds for him to be referred to an MEB or PEB. e. He states active duty Soldiers with suspected epilepsy must be evaluated by a neurologist for a determination if epilepsy exists and whether the Soldier should be given a trial of therapy while on active duty or referred to an MEB/PEB. If a trial of therapy is directed, the Soldier will be given a temporary P-3 profile with as few restrictions as possible. If the Soldier has been seizure-free for one year, the profile may be reduced to a P-2 profile with restrictions specifying no assignment to an area where medical treatment is not available. f. He states that he suffered a dislocated (left) shoulder during a Grand Mal seizure. He was issued several temporary profiles lasting from 90 days to one year; however, not all of them are in his medical records. The profiles fail to note that his epilepsy contributed to his shoulder dislocation, and significant tendon and muscle strain in his right shoulder region, or that his shoulder would dislocate during physical training (PT). g. He states that the Board incorrectly stated that his seizure disorder was not addressed until 2012. His military medical records show he was being treated for epilepsy while on active duty. He states it was not until 2012 that he started to have a series of sleep studies conducted which revealed that he had been suffering from an extreme case of sleep apnea for years (back to the time of his military service) and it was a contributing factor to his epilepsy condition. h. He states the Department of Veterans Affairs (VA) has granted him service connection for his epilepsy and both of his shoulders. i. The applicant refers to individuals who served with him in Babenhausen, Germany, who have written letters on his behalf. He states that the letters call into question whether the command was actually aware of their responsibilities with respect to the assignment and utilization of Soldiers in their military occupational specialties (MOS). He adds that the command was not fair and equal in its treatment of Soldiers regarding their medical conditions and issues. j. The applicant refers to AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), paragraph 3-30 (Neurological disorders), which provides for referral to an MEB in cases of Soldiers suffering from epilepsy. He also refers to paragraph 3-41 (General and miscellaneous conditions and defects), which includes obstructive sleep apnea or sleep-disorder breathing. (He provides a summary of the cited paragraphs.) He adds, in his case, the Army failed to properly address either of his conditions and he was never referred to an MEB. k. He states he was also diagnosed with depression while he was on active duty. The condition is entered on his separation report of medical history that he completed in April 1999. He adds that he disclosed that he was having trouble sleeping, suffering from depression (excessive worrying), and possibly nervous trouble. From that point on, the pressure on him increased until the day he was notified that he would not be authorized to reenlist. He notes the VA does not recognize his depression as a service-connected injury or illness. l. A DD Form 689 (Individual Sick Slip), dated 8 September 1999, shows he passed out during a PT run and that he was to be on profile until medically cleared. However, he was not referred to a medical specialist to determine what caused him to pass out and he was never medically cleared. Instead, the commander initiated a bar to reenlistment against him and forced him to be separated on his expiration of term of service (ETS) date. He adds, "[m]y packet also shows where my unit attempted to chapter me out of the military in April for being [no further information is provided by the applicant]." m. He states that his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 16 years of active duty service. He was issued separation code "JBK" that represents "Expiration of Term of Service" and the reentry code "3" that indicates he requires a waiver to reenter military service. This clearly shows he was prevented from finishing four years of active service to qualify for regular retirement. n. In addition to correction of his records to show he was retired based on physical disability, he requests reimbursement of funds he expended and also funds he lost as a result of his administrative separation. Specifically, the early termination of his military career resulted in the loss of a significant amount of money (which he summarizes), including Army retired pay, the cost for local housing in Germany, and private health care insurance premiums. He acknowledges he earned Federal Civil Service pay (GS-05/07/09) and VA disability compensation subsequent to his discharge from the U.S. Army. 3. The applicant provides copies of the following documents: * correspondence related to his requests for military service records * his DD Form 214 * military medical records (previously provided with original application) * three character/witness letters * extracts of AR 40-501 and AR 635-40 CONSIDERATION OF EVIDENCE: 1. The applicant's military service record is not available to the Board for review. The U.S. Army Human Resources Command, Fort Knox, KY, and the National Personnel Records Center, St. Louis, MO, confirmed that the applicant's military personnel records are not on file at their respective facilities. The available information shows the applicant was advised that his military medical records may be in the possession of the VA. 2. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140002265 on 7 October 2014. a. The applicant's letter, dated 26 January 2014, submitted as an enclosure with his original application shows in the third paragraph, "Upon my separation from the Army they never addressed or could find the cause of my seizure disorder. It wasn't until 2012, that I had a series of sleep studies it was concluded that I suffered from an extreme case of Sleep Apnea, which is triggering my epilepsy episodes. My Sleep Apnea did indeed begin while I was on active duty…" b. The ABCMR, Record of Proceedings, dated 7 October 2014, shows in "The Applicant's Request, Statement, and Evidence" section, subparagraph d, "[h]is seizure disorder was not addressed until 2012" and in subparagraph e, "[h]is sleep apnea began while he was on active duty…" c. The inaccuracy in the ABCMR Record of Proceedings with respect to the applicant's statement is acknowledged. It should have indicated words to the effect that "the cause of his seizure disorder was not addressed until 2012." 3. The applicant's DD Form 214 shows he enlisted in the Regular Army (RA) on 22 August 1984. He was honorably discharged on 21 August 2000 under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, based on completion of required active service with separation code "JBK" (Expiration of Term of Service) and reentry code "3." He completed 16 years of net active service this period that included 7 years, 1 month, and 16 days of foreign service. It also shows he was promoted to staff sergeant (E-6) on 1 April 1991 in MOS 13F (Multiple Launch Rocket System Fire Support Specialist). 4. The military medical records that the applicant has provided, covering the period 1984 to 2000, show he was seen and received treatment on numerous occasions for medical complaints that included, in pertinent part: * seizures * left shoulder dislocation * hernia a. A Standard Form (SF) 93 (Report of Medical History) and SF 88 (Report of Medical Examination), were prepared to document the applicant's 14 April 1999 physical examination for the purpose of "Chapter – Overweight." Item 46 (Examinee) of the SF 88 shows the examining physician found the applicant qualified for separation upon conclusion of a General Surgery evaluation. b. An SF 600 (Chronological Record of Medical Care), dated 11 May 1999, shows a Cardiothoracic Surgeon, General Surgery Clinic, U.S. Army Medical Activity, Heidelberg, noted the applicant had status post right inguinal hernia repair on 21 April 1999. He returned from convalescent leave on 7 May 1999, was healing well, and could deploy within the limits of his 30-day profile (i.e., no lifting more than 40 pounds, no push-ups or sit-ups, running at his own pace). c. A DD Form 689, dated 8 September 1999, shows in the Remarks block the applicant "passed out while running in PT formation this a.m." The brigade medical officer directed 48 hours quarters, no driving or operating equipment which requires consistent individual attention, and no firing weapons. He noted the applicant was to follow-up with internal medicine (as scheduled) and that the profile was in effect until the applicant was medically cleared. d. A DA Form 3888-3 (Medical Record – Nursing Discharge Summary), dated 23 September 1999, shows a medical official instructed the applicant on his activity limitations (i.e., light activity, no heavy lifting, no blowing of nose), medications, and care of his incision prior to being discharged to his home. e. A DD Form 689, dated 23 September 1999, shows in the Remarks block the medical doctor recommended convalescent leave for the applicant until 9 October 1999 due to facial fractures and then light duty per his physical profile. f. A Consult Report, dated 24 March 2000, shows the applicant was seen by a neurologist at the Neurology Clinic, Landsthul, Germany, for a status post epileptic seizure that occurred on 27 February 2000. It also shows he had a 4-year history of (4 to 5) intermittent episodes, he was evaluated in the past, and after the second episode he was placed on Dilantin. However, the applicant was taking only 100 milligrams (mg), once a day, and claimed that he was never told to increase the dosage to 300 mg (daily). g. A DA Form 2697 and SF 93 were prepared to document the applicant's physical examination on 28 December 2000. (1) The DA Form 2697 shows in item 20 (Health Care Provider Comment) the following: * seizure disorder – documented on EEG several years ago – has had a number associated with injuries – is maintained seizure-free with medication * left shoulder capsular shift – initial injury in 1996 during a seizure; surgery in 1998 – persistent chronic pain with limited use; he cannot do push-ups – cannot do overhead lifting (2) The SF 93 shows: * in response to item 19 (Have you ever been discharged from military service because of physical, mental, or other reasons?), the applicant noted, "#19, August 21, 2000, I was discharged from the military. At that point I was enrolled in the Army Weight Control Program and unable to reenlist. This was a direct result of physical limitations resulting from injuries and surgeries while on active duty." * the Physician's Summary and Elaboration of All Pertinent Data section shows the examining physician made note of, in pertinent part, the following: * seizure disorder – noted on EEG, requires maintenance (Dilantin) * left shoulder capsular shift – initially injured in seizure 1996 – surgically repaired 1998 – still profile limited * jaw surgery – fracture, seizure when running in September 1999 * ankle fracture 1986 playing softball – still painful when running * history of depression 5. A review of the available records failed to reveal evidence that the applicant had an unfitting medical condition because of physical disability that prevented him from performing his duties in his MOS on a permanent basis. This review also failed to reveal evidence that he was referred to the PDES for an MEB/PEB. 6. In support of his request for reconsideration the applicant provides the following additional documents that were not previously considered by the Board. a. A memorandum from Claude W____, U.S. Army veteran, dated 3 March 2015, that shows he met the applicant in March 1998 when they were serving in Babenhausen, Germany. He states the applicant had several medical problems that prevented him from doing PT, carrying or firing a weapon, going to the field, and deploying (to Bosnia). Despite his personal situation, he continued to take care of his Soldiers. He adds the commander never reassigned the applicant or referred him to an MEB and he was separated at ETS. b. A memorandum from Sergeant First Class Kelvin H____, Senior Human Resources Noncommissioned Officer, dated 4 November 2014, that shows he was stationed with the applicant in Babenhausen, Germany, from February 1997 to March 2000. He also states the applicant had several medical problems that prevented him from doing PT, carrying or firing a weapon, going to the field, and deploying (to Bosnia). He adds that the chain of command took a different approach, both professionally and personally, in dealing with the applicant's medical issues as compared to others in the unit. He adds the other Soldiers were transferred to units within the battalion because of their personal or physical issues, they were not barred from reenlistment, or treated any different from the rest of the unit. He notes that the applicant was removed from his positon as platoon sergeant, he was not referred to an MEB, or moved to a positon where he could have provided some support until he was medically cleared or retired. c. A memorandum from Derek K____, dated 23 October 2014, that shows he was stationed in Babenhausen, Germany, from 1998 to 2001. He states that he separated from the U.S. Army due to physical disability retirement. Prior to his separation he worked outside of his MOS because of his physical limitations. There were other Soldiers in the unit who were also reassigned to support positons due to medical reasons. However, the applicant was not afforded the same opportunity to continue his military career; instead he was forced to ETS. REFERENCES: 1. AR 40-501 provides standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 gives 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 Soldiers. a. Paragraph 3-30 (Neurological disorders) outlines the causes for referral to an MEB and lists (in subparagraph i) seizure disorders and epilepsy. Seizures by themselves are not disqualifying unless they are manifestations of epilepsy. However, they may be considered along with other disabilities in judging fitness. In general, epilepsy is disqualifying unless the Soldier can be maintained free of clinical seizures of all types by nontoxic doses of medications. The following guidance applies when determining whether a Soldier will be referred to an MEB. (1) All active duty Soldiers with suspected epilepsy must be evaluated by a neurologist who will determine whether epilepsy exists and whether the Soldier should be given a trial of therapy on active duty or referred directly to an MEB for referral to a PEB. In making the determination, the neurologist may consider the underlying cause, EEG findings, type of seizure, duration of epilepsy, family history, Soldier's likelihood of compliance with therapeutic program, absence of substance abuse, or any other clinical factor influencing the probability of control or the Soldier's ability to perform duty during the trial of treatment. (2) If a trial of duty on treatment is elected by the neurologist, the Soldier will be given a temporary P-3 profile with as few restrictions as possible. (3) Once the Soldier has been seizure free for 1 year, the profile may be reduced to a P-2 profile with restrictions specifying no assignment to an area where medical treatment is not available. (4) If seizures recur beyond 6 months after the initiation of treatment, the Soldier will be referred to an MEB. (5) Should seizures recur during a later attempt to withdraw medications or during transient illness, referral to a PEB is at the discretion of the physician or MEB. (6) If the Soldier has remained seizure-free for 36 months, they may be removed from profile restrictions. (7) Recurrent pseudoseizures are most commonly seen in the presence of epilepsy. As such, they do not meet the standard under the same rules as epilepsy. While each case may be individualized, their evaluation by a neurologist should be routinely sufficient. b. Paragraph 3-41 (General and miscellaneous conditions and defects) outlines the causes for referral to an MEB and lists (in subparagraph c) sleep apnea. Obstructive sleep apnea or sleep-disordered breathing that causes daytime hypersomnolence or snoring that interferes with the sleep of others and that cannot be corrected with medical therapy, nasal continuous positive airway pressure (CPAP), surgery, or an oral appliance. The diagnosis must be based upon a nocturnal polysomnogram and the evaluation of a pulmonologist, neurologist, or a privileged provider with expertise in sleep medicine. (1) A 12-month trial of therapy with nasal CPAP may be attempted to assist with other therapeutic interventions, during which time the individual will be issued a temporary profile. A Soldier with severe sleep apnea and/or symptoms may be referred directly for an MEB. If nasal CPAP is required for longer than 12 months, the Soldier should be profiled as a permanent P2. (2) If symptoms of hypersomnolence or snoring cannot be controlled with medical therapy, nasal CPAP, surgery or an oral appliance, the individual should be referred for a MEB. If the use of nasal CPAP or other therapies for sleep apneas result in interference with satisfactory performance of duty as substantiated by the individual's commander or supervisor, the Soldier should be referred to a MEB. 2. AR 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a. Chapter 2, paragraph 2-9, shows that the unit commander will: * become thoroughly familiar with the purpose of the Army PDES * ensure that any physical defects impacting on a Soldier's performance of duty are reflected in the Soldier's evaluation report * refer a Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating * upon request of the MTF commander, provide the information, statements, and records on Soldiers of their command being processed for physical disability evaluation * ensure timely compliance with AR 600-8-4 (Line of Duty Policy, Procedures, and Investigations) to prevent delay in the disability processing of Soldiers under their command b. Chapter 3, 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 Soldier reasonably may be expected to perform because of his or her office, rank, grade or rating in such a way as to reasonably fulfill the purposes of his/her employment on active duty. 3. 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. 4. AR 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR). Chapter 3 (Basic Qualifications for Enlistment in the RA and USAR, Prior Service Applicants) shows RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; eligibility: ineligible unless a waiver is granted. 5. AR 635-200, chapter 4 (Separation for Expiration of Service Obligation), provides that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. 6. AR 600-9 (The Army Weight Control Program), in effect at the time, implemented and established guidance on the Army Weight Control Program. Paragraph 22 (Reenlistment criteria) shows that personnel who exceed the screening table weight and the body fat standard for their current age group will not be allowed to reenlist or extend their enlistment. 7. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it and begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. The ABCMR will decide cases on the evidence of record; the ABCMR is not an investigative body. DISCUSSION: 1. The applicant's request for reconsideration, along with the three character/ witness letters he provides in support of his request, that his records should be reviewed by an MEB/PEB and corrected to show he was retired due to physical disability was carefully considered. 2. The Board decides each case on the evidence of record and begins its consideration of the case with the presumption of administrative regularity. The Board is not an investigative agency and the applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. The evidence of record shows the applicant sustained an injury (left shoulder capsular shift) in 1996 during a seizure. He underwent shoulder surgery in 1998 and continued to have chronic pain with limited use. He was then issued several temporary profiles that limited his physical activity during his military service. 4. The applicant's NCOERs (i.e., those completed subsequent to January 1996) are not available for review. However, it is reasonable to conclude that the rating officials correctly documented the applicant's compliance with Army standards (e.g., the Army Weight Control Program) and his duty performance within the limitations of any physical profile(s) that may have been in effect at the time. 5. The available medical records document the applicant's history of medical treatment for his medical conditions during the period of his military service. In addition, the evidence of record shows he was referred to the MTF for medical evaluation and clearance when he was being processed for administrative separation for not meeting the standards of the Army Weight Control Program. There is no medical evidence that the applicant's medical problems precluded him from losing weight. 6. The applicant underwent a physical examination for the purpose of separation based on not meeting the standards of the Army Weight Control Program. a. On 14 April 1999, the examining physician found the applicant qualified for separation upon conclusion of a General Surgery evaluation. b. On 11 May 1999, a Cardiothoracic Surgeon, General Surgery Clinic, noted the applicant had a status post right inguinal hernia repair on 21 April 1999, had returned from convalescent leave on 7 May 1999, and he could deploy within the limits of his 30-day profile (i.e., he was cleared for administrative separation). c. On 23 September 1999, a medical doctor recommended convalescent leave for the applicant until 9 October 1999 due to facial fractures and then light duty within the limitations of his temporary physical profile. d. On 24 March 2000, the applicant was seen by a neurologist for a status post epileptic seizure that occurred on 27 February 2000. The evidence of record shows the applicant had a 4-year history of (4 to 5) intermittent episodes. After the second episode, he was evaluated and placed on medication (Dilantin). e. The evidence of record shows that seizures by themselves are not disqualifying unless they are manifestations of epilepsy. It also shows epilepsy is disqualifying unless the Soldier can be maintained free of clinical seizures of all types by nontoxic doses of medications. Moreover, evaluation by a neurologist is routinely sufficient for such determination. f. There is no evidence of record that shows the applicant was unable to perform his military duties (within the limits of his temporary physical profiles) due to any of his medical conditions. 7. The applicant was honorably discharged from the RA on 21 August 2000 under the provisions of AR 635-200, chapter 4, based on fulfillment of his service obligation. The evidence of record shows his discharge was accomplished in compliance with applicable regulations with no indication of procedural errors. 8. The physical examination that the applicant provides, that was completed on 28 December 2000, was completed more than four months after his discharge from the RA. The examining physician confirmed (at that time) the applicant is "maintained seizure-free with medication." 9. There is no evidence of record that shows the applicant's medical conditions (individually or in combination) were found to be medically unfitting under the provisions of AR 40-501 or by the physicians who examined the applicant during his separation processing for his discharge from active duty. As such, he was not eligible for separation under the provisions of AR 635-40. Moreover, based on the foregoing, he is not entitled to correction of his records to show he was permanently retired based on physical disability. 10. There is no evidence of record that shows the applicant was diagnosed with obstructive sleep apnea, sleep-disordered breathing, or depression during the period of his military service. 11. Both the statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service. Furthermore, the condition(s) can only be rated to the extent that the condition(s) limit(s) the performance of duty. The VA on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008753 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008753 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2