IN THE CASE OF: BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150012116 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: 8 December 2016 DOCKET NUMBER: AR20150012116 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the Army Board for Correction of Military Records as set forth in Docket Number AR20140011054, dated 4 June 2015. _____________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: 8 December 2016 DOCKET NUMBER: AR20150012116 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 the Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20140011054 on 4 June 2015. Specifically, he requests correction of his records to show he was retired due to physical disability. 2. The applicant states the reason for his request stems from the premise that the Board did not fully address his previous application. Additionally, he craves the indulgence of the Board to cite from his enclosed medical records, specifically, Doctor B.P.'s comment, who after his medical review for the Department of Veterans Affairs (VA), rationalized about his diagnosis stating: Prostate cancer can be slow growing; although he was diagnosed in May 2012, the years of elevated prostate-specific antigen (PSA) while on active duty would be the first indication that the cancer is developing. 3. The applicant provides: * an extract of his VA Clinical Progress Notes, printed on 24 May 2013 * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code Section 1552), dated 18 September 2013 (previously submitted but not discussed) * numerous active duty and VA medical records CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140011054, on 4 June 2015. 2. The applicant provides a DD Form 149, dated 18 September 2013, and an extract of his VA Clinical Progress Notes, which were not discussed by the Board during the adjudication of his previous case. Therefore, these documents are considered new evidence that warrants consideration by the Board. 3. In the DD Form 149, dated 18 September 2013, the applicant states: a. Despite the fact that he had multiple medical conditions that ultimately marginalized his overall health, during the review of his medical records, the medical board excluded radiculopathy and other conditions that presented a formidable threat to his health and readiness as a senior medical noncommissioned officer. b. He exited the service to retrain himself as a medical student with the intention of reentering military service; however, he was diagnosed with prostate cancer in May 2013 (with elevated PSA evident in 2005), which closed the door for him to reenter the military. c. It is unjust that he will not be able to retire from the Army after 15 years and 2 months of outstanding service and an unblemished record in pay grade E-7, with 8 years of time in grade and a Master of Science degree, unless the Board provides a recourse for the aforementioned situation. 4. In his previous request, the applicant stated: a. He was allowed to separate under an incorrect and incomplete medical evaluation while other underlying medical issues remained unidentified. b. He was also allowed to separate without any financial consideration for his 15 years of honorable service. c. On 6 June 2005, the Physical Evaluation Board (PEB) found him fit for duty in spite of the "DCCS's" statement that he "is unable to perform basic Soldier skills as outlined on his DA 3349 [Physical Profile]" and that he “is unable to perform military occupational specialty (MOS) duties 91W [Medical Specialist]…” d. Consequently, he received an honorable discharge upon acceptance into medical school, which he believed would offer him another opportunity to continue to serve based on his aptitude in spite of his physical limitations. e. Effective 1 July 2005, the VA rated him 80 percent disabled, which rebuts the presumption that what the Army did in his case was correct. f. The Board's letter to him dated 25 October 2013 stated, "Since the Board is not an investigative body and since there is a rebuttable presumption that what the Army did in your case was correct," which provides additional premise to seek redress through this honorable Board to reconcile his VA rating against his PEB fit for duty determination. 5. In the previous Record of Proceedings, it was noted that: a. The applicant enlisted in the Regular Army on 28 November 1989 and completed training as a medical specialist. He remained on active duty through continuous reenlistments and extensions. b. On 23 March 2005, he was issued a permanent physical profile due to chronic lower back pain and depression. The profiling officer indicated the applicant's physical profile did not require a change in his MOS or duty assignment and he could perform duties in accordance with his MOS specifications. This physical profile superseded previously issued profiles. The profile included the following limitations and instructions: * no 2 mile run * no Army Physical Fitness Test (APFT) sit-ups * no APFT push-ups * no unlimited running * no unlimited walking * running and jumping exercises at his own pace and no rucksack marching * no carrying load bearing equipment exceeding 30 pounds * inability to construct fighting position * applicant requires MEB/PEB c. On 25 May 2005, a Medical Evaluation Board (MEB) was convened to evaluate the applicant's medical conditions. After consideration of clinical records, laboratory findings, and physical examinations, the MEB determined that his chronic low back pain secondary to a herniated disc was medically unacceptable for retention. No additional medical conditions were evaluated by the MEB. The MEB recommended the applicant's referral to a PEB. He agreed with the MEB's findings and recommendation on 26 May 2005 (he also indicated that he did not desire to continue on active duty under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)). d. On 2 June 2005, a PEB convened to determine his fitness for retention in the Army. The PEB determined: (1) Based on a detailed review of the evidence of record, he did not have any functional impairment which prevented satisfactory performance of duty. The PEB found him fit for duty in his current grade and specialty. (2) He could train for and perform any of the three alternative aerobic events for the APFT and perform all of the functional activities of a Soldier in his grade, experience, and assignment. He could qualify with his assigned weapon and his profile did not deny him the use of chemical protective garments to include the protective mask, nor did it preclude the wear of protective body armor, the Kevlar helmet, and load bearing equipment. His most recent noncommissioned officer evaluation reports covering periods up to October 2004 indicate that he achieved a rating of excellence or success in all rating categories. His senior rater recommended immediate promotion and noted that both his overall performance and potential were "top block." His commander recommended retention. (3) The PEB further noted that in accordance with current regulations, any restriction imposed by the serial profile is subject to a request for reconsideration by the unit commander. Deployability is a commander's decision and non-deployablity, moreover, is not an unfitting condition. e. The PEB found him physically fit and recommended his return to duty. He concurred with the PEB's findings. On 6 June 2005, the PEB was approved by a designated representative for the Secretary of the Army. f. On 30 June 2005, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, at the expiration of his term of service. He completed 15 years, 7 months, and 3 days of net active service. g. In support of his previous request, the applicant provided Army and VA medical records. The Board determined that none of the documents showed he was unable to perform basic Soldier skills as outlined on his DA Form 3349. A review of a VA medical consultation sheet, dated 20 January 2011, authenticated by his VA primary care physician, shows he was granted service-connected disability compensation rated at 80 percent for the following conditions: * sleep apnea syndrome, 50 percent * major depressive disorder, 30 percent * paralysis of sciatic nerve, 10 percent * gastritis, 10 percent * degenerative arthritis of the spine, 10 percent * chronic laryngitis, 0 percent * myclonic convulsions, 0 percent * superficial scars, 0 percent * eczema, 0 percent * migraine headaches, 0 percent * chronic maxillary sinusitis, 0 percent 6. The Board concluded the following: a. The applicant indicated during the MEB process that he did not desire to continue on active duty. b. The PEB determined he was fit for duty and recommended his return to duty. He concurred with the findings and recommendation made by the PEB c. While his physical profile limited some of his abilities to perform basic Soldier skills, the PEB made recommendations to his commander on how to adjudicate the profile. One's inability to perform certain basic Soldier skills is not by itself unfitting. d. The applicant separated from active Federal service based on completing his military service obligation. Subsequently, he was awarded an 80 percent service-connected disability rating from the VA for a number of medical conditions that included low back pain and depression. e. The VA 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, that is was service connected, and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned post service. f. There was insufficient evidence in the available records and the applicant did not provide sufficient evidence to substantiate his contention that he was allowed to separate with an incorrect and incomplete medical evaluation. 7. In support of his request for reconsideration, the applicant provided: a. An extract of his VA Clinical Progress Notes, printed on 24 May 2013, which includes the statement "Veteran had an elevated PSA of 3 the year he was retiring when normal is 1-1 for PSA. Elevation of the PSA can be due to many reasons, but the veteran has had no symptoms of infection or hypertrophy. Normal, smooth 30 gram prostate on exam today. The prostate cancer can be slow growing, and although he was diagnosed in May 2012, the years of elevated PSA while on active duty would be the first indication that the cancer is developing." b. Numerous active duty and VA medical records; however, these documents do not show he was unfit to perform his military duties due to a diagnosis of prostate cancer or any other medical conditions. REFERENCES: 1. 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 his or her office, grade, rank, or rating. a. It provides for MEBs, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected 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 (Standards of Medical Fitness). If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. b. It states the Narrative Summary (NARSUM) to the MEB is the heart of the disability evaluation system. In describing a Soldier's conditions, a medical diagnosis alone is not sufficient to establish that the individual is unfit for further military service. Soldiers who have been evaluated by an MEB will be given the opportunity to read and sign the MEB proceedings. If the Soldier does not agree with any item in the medical board report or the NARSUM, he or she will be advised of appeal procedures. c. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. d. It states 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 or her office, rank, grade or rating. 2. Title 10, U.S. Code, 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 30percent and Title 10, U.S. Code, 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 percent. 3. 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 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 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. DISCUSSION: 1. The evidence shows a PEB found him fit for duty. He concurred with the PEB findings and recommendations. 2. The VA determined that he suffered from other medical conditions that were not identified as unfitting at the time of his discharge from active duty. The fact that the VA gave these conditions a rating does not mean any of the conditions were misdiagnosed by the Army. There is no evidence to show he was unfit to perform his duties due to those other conditions. 3. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 4. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined the individual suffers from an impairment that disqualifies him or her from further military service. There is no evidence indicating he was physically unfit. In addition, his medical issues did not interrupt his career. He was voluntarily separated at the completion of his military service obligation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012116 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012116 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2