BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20150011110 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 BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20150011110 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. BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20150011110 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 records to show he was medically discharged from the U.S. Army Reserve (USAR) vice transferred to the Retired Reserve. 2. The applicant states: a. He was forced to be discharged on 20 October 2005 (i.e., 20 November 2005) for completion of 20 or more years of qualifying service for retired pay at age 60. In 2005, he was sent to a medical board and the response was received on 17 March 2006, 1 year after his retirement. b. On 26 April 2001, he received a Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter). From 7 December 2003 to 28 February 2005, he was mobilized in support of Operation Iraqi Freedom (OIF). On 31 July 2005, he received a DA Form 3349 (Physical Profile) from Colonel (COL) OLV and on 17 September 2005 he had his retirement physical examination. c. On 20 October 2005, he received his retirement orders with an effective date of 20 November 2005. On 1 March 2006, he received Standard Form (SF) 507 (Medical Record) with an effective date of 29 December 2005. On 17 March 2006, after the effective date, he received documentation of the Command Surgeon's Review from the unit administrator, 448th Engineer Battalion (BN), his former unit. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Twenty-Year Letter * two SF 507 (Clinical Record), dated 15 November 2003 and 17 September 2005 * two pages 2 of DA Form 7349 (Initial Medical Review - Annual Medical Certificate), dated 15 November 2003 and 31 July 2005 * DA Form 3982 (Medical and Dental Appointment), dated 23 March 2005 * Tricare Referral, dated 23 March 2005 * SF 600 (Chronological Record of Medical Care), dated 31 July 2005 * two DA Forms 3349, dated 31 July 2005 and 2 March 2006 * DD Form 2807-1 (Report of Medical History), dated 17 September 2005 * DD Form 2808 (Report of Medical Examination), dated 17 September 2005 * orders, dated 20 October 2005 * memorandum, dated 17 March 2006 * page titled Eligibility Verification Data, dated 17 February 2014 * two letters, dated 21 October 2014 and 14 May 2015 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code (USC), 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 was born on 5 May 1949. Having had prior active duty service from October 1968 to October 1970, he enlisted in the USAR on 23 March 1983 at San Juan, Puerto Rico (PR) and held military occupational specialty (MOS) 21H (Construction Engineering Supervisor). 3. He served through several reenlistments and/or extensions. On 8 September 1995, he was promoted to the rank/grade of staff sergeant (SSG)/E-6. He was assigned to Company C, 448th Engineer BN, Troop Program Unit (TPU), Ponce, PR, 65th Regional Readiness Command (RRC). 4. His record contains a: a. DA Form 2166-7 (Noncommissioned Officer Evaluation Report (NCOER)), for the rated period May 1999 through April 2000, wherein it shows he successfully met all the requirements of duty MOS 51H during the rating period. It also shows he passed the Army Physical Fitness Test (APFT) in November 1999 and contains the bullet comments: * is able to analyze what is being asked and devises methods to master the objectives * demonstrates good physical health, a pleasing appearance, and emotional stability b. DA Form 2166-7 for the rated period May 2000 through April 2001, wherein it shows he successfully met all the requirements of duty MOS 51H during the rating period. It also shows he passed the APFT in August 2000 and contains the bullet comments: * performs duties with self-confidence and always the course to successfully complete * demonstrates excellent physical health and emotional stability * ready for increased responsibility 5. On 25 April 2001, he received his Twenty-Year Letter informing him he had completed the required years of qualifying service and was eligible for retired pay at age 60. 6. His record contains a: a. DA Form 2166-8 (NCOER) for the rated period May 2001 through April 2002, wherein it shows he successfully met all the requirements of duty MOS 51H during the rating period. It shows he passed the APFT in November 2001 and contains the bullet comments: * shows a knowledgeable approach that is needed to accomplish duties * has the physical toughness to surpass the requirements for the position presently * demonstrates decisive leadership ability b. DA Form 2166-8 for the rated period May 2002 through April 2003, wherein it shows he successfully met all the requirements of duty MOS 51H during the rating period. It shows he passed the APFT in October 2002 and contains the bullet comments: * has suitable skills to maximize the limited resources available * keeps fit and healthy * hard worker, willing to seek responsibility in his platoon 7. The applicant's medical records are not available for review with this case. All medical forms/documentation have been provided by the applicant. 8. The applicant provides a: a. SF 507, dated 15 November 2003, wherein he checked the appropriate blocks to indicate he did not have any medical conditions that prevented him from walking 12 miles, wearing load bearing equipment (LBE), lifting and carrying up to 40 pounds, being on his feet for 4 hours, or completing the APFT. He also indicated he did not currently have a temporary or permanent profile and the only medication he was taking and condition he was being treated for was [high] cholesterol (emphasis added). b. Second page of DA Form 7349, dated 15 November 2003, wherein the examining physician noted he was deployable and his PULHES was 1-1-1-1-1-1. 9. He was ordered to active duty as a member of his USAR unit in support of OIF and entered active duty on 7 December 2003. He served in Kuwait from 10 February 2004 to 3 February 2005. 10. His record contains a DA Form 2166-8 for the rated period May 2003 through April 2004, wherein it shows he successfully met all the requirements of duty MOS 21H during the rating period. It shows he passed the APFT in April 2004 and contains the bullet comments: * an irreplaceable source of professional knowledge and sound judgement * trained Soldiers to meet the challenge of today's battlefield and survive * wise, efficient, and prudent manager of resources * set, maintained, and enforced high standards 11. On 28 February 2005, he was honorably released from active duty to the control of his USAR unit. The DD Form 214 he was issued for this period of service shows he completed 1 year, 2 months, and 24 days of net active service during this period and had 24 years, 8 months, and 19 days of total prior inactive service. 12. He provides a DA Form 3982, dated 23 March 2005, wherein it shows he was seen at Rodriguez Army Health Clinic (RAHC), Fort Buchanan, PR, on that date and received a referral to the Psychiatry Clinic. The Tricare Referral, dated 23 March 2005, shows the treating physician, in part, stated, "Please evaluate this 55 year old male with sleep problems, depressed mood, and immediate memory impairment..." The provisional diagnosis was mood disorder. 13. His record contains a DA Form 2166-8 for the rated period May 2004 through April 2005, wherein it shows he successfully met all the requirements of duty MOS 21H during the rating period. It shows he passed the APFT in October 2004 and contains the bullet comments: * outstanding Battle Staff skills; key to success of platoon and company operations * confident and mentally sharp NCO * best trainer in the company; always assigned the most difficult classes to teach * able to handle any position; held Platoon Sergeant and Section NCO in Charge (NCOIC) positions simultaneously with great success 14. The applicant provides a/an: a. SF 600, dated 31 July 2005, wherein the 65th RRC Surgeon, COL OLV, listed medical issues pertaining to the applicant. This form is not completely legible but appears to list (1) inguinal hernia, (2) hypertension, (3) post-traumatic stress syndrome, (4) lumbar back pain, and (5) possible elbow pain. It also stated, "Soldier does not want to remain in the Army." b. DA Form 3349,dated 31 July 2005, wherein it shows: (1) He received a permanent profile of "2" in the P (Physical Condition) category of the PULHES, "2" in the U (Upper Extremities) category, "3" in the L (Lower Extremities) category, "2" in the E (Eyes) category, and "3" in the S (Psychiatric) category. His PULHES was 2-2-3-1-2-3. (2) The profile showed the medical conditions, in part, as lumbar pain and inguinal hernia. The needs medical evaluation board (MEB)/ physical evaluation board (PEB) block of the profile was circled and it stated in part, the patient referred for head and low back pain, herniated testicle, and possible elbow pain. Patient also has a mood disorder. (3) The profiling authority was COL AE and the approving authority was COL OLV. Both officers signed the form on 31 July 2005 c. SF 507, dated 17 September 2005, wherein he checked the appropriate blocks to indicate he did have medical conditions that prevented him from walking 12 miles, wearing LBE, lifting and carrying up to 40 pounds, being on his feet for 4 hours, or completing the APFT. He also indicated he had carpal tunnel, tendonitis, spasms of the lumbar disc, back problems, lumbar back pain, and he currently had a permanent profile. d. DA Form 2807-1, dated 17 September 2005, the applicant completed at the San Juan Department of Veterans Affairs (VA) Medical Center (SJVAMC), San Juan, PR. It shows the purpose of the examination was retention and his unit as 448th Engineer BN. The applicant checked the appropriate blocks to indicate he previously had or currently had, in part, the following medical conditions: * hernia * hemorrhoids * back condition * right elbow condition * right arm tendonitis * mood disorder * mental problems * depression * anxiety * painful urination * headaches * chest pain * high or low blood pressure * trouble sleeping * memory loss e. DA Form 2808, dated 17 September 2005, the examining physician completed at the SJVAMC. It shows the purpose of the examination was retention and the applicant's unit as 448th Engineer BN. It shows the clinical evaluation revealed, in part, the applicant's upper extremities, lower extremities, spine, feet, and pelvic were all "normal." The only abnormal block checked was the psychiatric block and the examining physician noted the applicant had depressed mood and was anxious. f. Page 3 of the DA Form 2808 appears to have been completed much later than 17 September 2005. The examining physician checked the block on the form to show the applicant was qualified for service "pending review by command authority" and noted as of 10 October 2005, his PULHES was 2-3-3-1-2-3; as of 2 March 2006, his PULHES was 2-3-3-1-2-3. 15. Orders 05-293-0005, dated 20 October 2005, issued by Headquarters (HQ), 65th RRC, released him from his current assignment and assigned him to the Retired Reserve effective 20 November 2005. 16. The applicant provides a/an: a. Memorandum, dated 17 March 2006, subject: Command Surgeon Review, wherein it stated enclosed was the final Command Surgeon review of the physical examination for the applicant. Any required administrative action relating to the exam was reported directly to the RRC when appropriate. This was the official, final file copy of the physical examination with the date of service of 17 September 2005. b. SF 507, dated 1 March 2006, pertaining to the applicant from the Physical Review Board (PRB), U.S. Army Human Resources Command (HRC) wherein it stated: (1) Date: 29 December 2005 Action: Request Additional Information Comments: anxiety/depression, back pain, inguinal hernia, tendonitis bilateral carpal, memory loss. (2) Date: 1 March 2006 Action: Failure to Comply Comments: Service Member (SM) already retired and failed to comply with request for additional information. Based on information obtained from physical examination should SM desire to return to active duty he fails medical retention standards and would require board action for anxiety and depression, memory loss, and back pain. Would require an MOS/Medical Retention Board (MMRB) for left elbow tendonitis. c. DA Form 3349, wherein it shows he received a permanent profile of "2" in the P category of the PULHES, "3" in the U category, "3" in the L category, "2" in the E category, and "3" in the S category. His PULHES was 2-3-3-1-2-3. The profiling authority was Dr. JP and he signed the form on 10 October 2005. The approving authority was COL RLC, the Assistant Command Surgeon, HRC, and he signed the form on 2 March 2006. 17. Orders P11-817195, dated 5 November 2008, issued by HRC, retired the applicant and placed him on the Retired List effective 5 May 2009, the date he turned 60 years of age. 18. The applicant provides: a. A report titled Eligibility Verification Data, dated 17 February 2014, wherein it shows the "money" was verified on 20 December 2007, service was verified on 27 December 2010, and lists his service-connected (SC) disabilities as: * major depressive disorder (100% SC), original effective date - 1 March 2005, current effective date - 5 October 2010 * lumbosacral or cervical strain (40% SC, original effective date - 1 March 2005, current effective date - 29 March 2010 * paralysis of medial nerve-right (30% SC), original effective date - 1 March 2005, current effective date - 1 March 2005 * paralysis of median nerve-left (20% SC), original effect date - 1 March 2005, current effective date - 1 March 2005 * limited motion of arm-right (20% SC), original effective date - 1 March 2005, current effective date - 21 February 2012 * superficial scars (10% SC), original effective date - 1 March 2005, current effective date - 1 March 2005 * limited flexion of forearm-right (10% SC), original effective date - 1 March 2005, current effective date - 29 March 2010 * tinnitus (10% SC), original effective date - 1 March 2005, current effective date - 1 March 2005 * impaired hearing (0% SC), original effective date - 1 March 2005, current effective date - 1 March 2005 b. A letter, dated 21 October 2014, from the VA Satellite Outpatient Clinic, Ponce, PR, wherein the clinic chief certified the applicant was 65 years old and was under the primary care of Dr. NC and the psychiatric care of Dr. CD. He was currently receiving treatment/medication for: * dementia of the Alzheimer's type * memory loss * major depressive disorder * sensorial hearing loss * tinnitus * rhinitis * fibromyalgia * lumbar radiculopathy * chronic low back pain * peripheral pterygium, progressive * glaucoma * refraction error * incipientle senile cataract * hypercholesterolemia * hypertriglyceridemia * hypertension c. A letter, dated 14 May 2015, wherein Dr. CD, psychiatrist, stated the applicant had been under his care since the day of admission into the clinic on 16 September 2005. He was diagnosed with major depressive disorder, single episode, severe, with psychotic features; dementia of the Alzheimer's type, early onset with depressed mood; and sleep apnea. He had been presenting memory deficits since his first evaluation in September 2005. He scored 14 (maximum score 30) in a Mini-Mental Status Exam and continued showing marked memory deficits since. In addition, he had been treated for depression, was currently active in his treatment, and needed continued treatment to prevent deterioration. REFERENCES: 1. Title 10, USC, 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. 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 that the rights and interests of the government and the Soldier are protected. b. Soldiers are referred to the physical disability evaluation system (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; or receive a permanent medical profile and are referred by an MMRB; or are command-referred for a fitness-for-duty medical examination; or are referred by the Commander, HRC. c. The PDES assessment process involves two distinct stages - the MEB and 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 or not 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. d. The mere presence of 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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 his or her office, grade, rank, or rating. 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. 3. Title 10, United States Code 10 USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 4. Army Regulation 135-178 (USAR Enlisted Administrative Separation) in effect at the time, established the policies, standard, and procedures governing the administrative separation of enlisted Soldiers of the Army National Guard of the United States (ARNGUS) and the USAR. It applies to all enlisted Soldiers of the ARNGUS and the USAR who are not performing fulltime active duty in the U.S. Army. The policy for the discharge of Soldiers medically unfit for retention, in effect at the time, stated, in part, discharge would be accomplished when it had been determined that a Soldier was no longer qualified for retention by reason of medical unfitness under the provisions of Army Regulation 40-501, unless the Soldier was eligible for transfer to the Retired Reserve. 5. Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA does not have 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. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 6. Title 10, USC, section 12316, prohibits the concurrent receipt of drill pay and VA disability compensation. Veterans who perform active or inactive duty training must choose the benefit they prefer and waive the other. DISCUSSION: 1. The applicant served in the USAR 448th Engineer BN, TPU, 65th RRC, PR, from March 1983 until he was transferred to the Retired Reserve in November 2005. During this period, he was mobilized and served on active duty from 7 December 2003 to 28 February 2005 and served in Kuwait from 10 February 2004 to 3 February 2005. 2. The evidence of record confirms he performed his military duties in a satisfactory manner at least through April 2005 as evidenced by the NCOERs he received for the rated periods May 1999 through April 2005. Each NCOER shows he successfully met the requirements of his duty MOS during the rating period, consistently passed the APFT, and contained bullet comments such as performs duties with self-confidence, demonstrates excellent physical health and emotional stability, outstanding Battle Staff skills, key to success of platoon and company operations, and confident and mentally sharp NCO. 3. The medical records for review with this case are those provided by the applicant. He provides an SF 600, dated 31 July 2005, wherein the 65th RRC Surgeon noted the applicant did not want to remain in the Army and listed his medical issues as inguinal hernia, hypertension, post-traumatic stress syndrome, lumbar back pain, and possible elbow pain. He received a permanent profile, his PUHLES was listed as 2-2-3-1-2-3, and he was recommended for referral to an MEB/PEB. 4. In conjunction with his referral to a medical board, he underwent a physical examination on 17 September 2005. A DA Form 2808, dated 17 September 2005, shows the purpose of the examination was retention and the clinical evaluation revealed, in part, the applicant's upper extremities, lower extremities, spine, feet, and pelvic were all "normal." The only abnormal block checked was the psychiatric block and the examining physician noted the applicant had depressed mood and was anxious. 5. The documentation was forwarded to the PRB; however, prior to the board making a determination of fit for duty or unfitness, orders were issued in October 2005, presumably at the applicant's request, that released him from his TPU and transferred him to the Retired Reserve effective 20 November 2005. 6. His PULHES was subsequently listed as 2-3-3-1-2-3 and the PRB found he was medically unfit for retention. The HRC Command Surgeon stated he failed to comply with the request for additional information and had already retired. However, if he desired to return to duty he would require board action for anxiety and depression, memory loss, and back issues, and would require an MMRB for left elbow tendonitis. 7. He also provides evidence that shows he received VA service-connected disability as of 1 March 2005. 8. In order to be considered for a disability retirement, the applicant would have had to been found unfit to perform the duties required of his MOS and grade by an MEB/PEB based on medical conditions or defects that contributed to his unfitness and warranted retirement for disability, and received a rating for each unfitting condition. In this case, the PRB action was not completed. In the absence of evidence to the contrary, it is presumed the applicant chose not to comply with the request for additional information and requested to be transferred to the Retired Reserve rather than processed through the PDES. There is insufficient evidence of an error or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011110 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011110 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2