IN THE CASE OF: BOARD DATE: 23 February 2017 DOCKET NUMBER: AR20150015551 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: 23 February 2017 DOCKET NUMBER: AR20150015551 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: 23 February 2017 DOCKET NUMBER: AR20150015551 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 her records to show she was medically retired by reason of disability, vice honorably discharged on 15 May 2011. 2. The applicant states: a. She received orders from the State Military Department, Alabama Army National Guard (ALARNG), on 20 May 2011, stating she had been honorably discharged from the ARNG and the Reserve of the Army, effective 15 May 2011. She would have successfully completed 15 years of service in August 2011. b. Her discharge was improper and unfair, leaving her with no retirement benefits and no medical treatment options (TRICARE) for health problems that were incurred and aggravated during military service. All of her medical conditions and her declining health can be attributed to her year of combat service in Iraq. Prior to her deployment, she was found to be in excellent health. c. Her Notification of Medical Disqualification process started when she received a memorandum of options from her unit clerk, which she signed and returned on 16 August 2009. In her response, she elected option number two (#2), consideration of her case by a Non-Duty Related Physical Evaluation Board (NDR-PEB), as her disposition election. d. In September 2009, she received a second memorandum, which was accompanied by a DA Form 4187 (Personnel Action), a request for an extension of her contractual obligation date to 16 December 2009, thereby allowing her time to complete her processing through the disability system. e. The State Military Department requested additional medical records. Accordingly, she gathered documents from her service medical records, unit files, medical records from the local clinic she visited several times, and her medical files from the Department of Veterans Affairs (VA) medical center at Tuscaloosa, AL. She complied with the request for additional medical records. Throughout this process, she continually asked and was assured that nothing more was needed; her case was simply awaiting a board review date. f. At some point between September and November 2010, she received a third memorandum, which was essentially the same as the previous two. Upon receiving this memorandum, she wasn't sure what options she had or what was being requested in the memorandum, since she had responded to the identical memoranda previously. At this point, it had gotten so confusing and she did not know what was needed; she was still communicating with her ARNG point of contact to ensure all of her paperwork had been submitted for an NDR-PEB. g. She consulted with her points of contact to get clarification as to exactly what was expected from her and to discuss her concerns. No one was sure of what was going on, so she was instructed to write a letter. She wrote a letter explaining that she wasn't sure which option she should have selected and she questioned the applicability of either option and asked for clarification as to the options in her case. She forwarded the letter to her unit representative, along with all other related documents, which her unit representative intended to send to the appropriate office following his review. Going forward, each time she spoke with her unit representative in regard to her case, he assured her that everything was where it needed to be and her file was in Texas, ready for the board. h. In early March 2011, the Demopolis [a city in Alabama] unit returned from Iraq. Consequently, she began communicating with two other military representatives in regard to her case. She was told that more medical documents were needed to support her case. She took time off from work and went directly to the Tuscaloosa VA office, where she was receiving medical treatment, and requested all of her medical documentation. After receiving the documents, she made copies and personally delivered them to her new unit representative, along with records of sick call slips and doctor notes from Iraq. Sometime during this period, she received a memorandum, dated 20 May 2011, which requested she submit additional information. She followed up with her unit representative, who assured her that every necessary document had been received. She then received discharge orders from the Department of Army announcing her discharge from the ARNG for failing to provide documentation by the noted suspense date. i. She reported for duty in May and June 2011; she was not told that she was no longer on the unit rolls since she had been discharged. Even so, she and her unit representative were still signing papers related to her medical board. She found out later that she would not receive pay for her drill attendance because she had been discharged. She was not given an opportunity to go before a medical board to determine her medical condition prior to discharge; she was just put out. j. In July 2011, she filed for assistance with the ALARNG Inspector General (IG). She finally got a conclusion letter one year later in October 2012. In its conclusion letter, the IG stated that their investigation had revealed that three memoranda were forward to her for response concerning her Notification of Medical Disqualification; however, no response was received from her to any of the three memoranda. The IG was given false information in regard to her response; he stated that he was told that no response from her was given during the requested period. She has signed documents, memos, and email messages regarding this claim. The IG never inquired with her about supporting documentation she may have had in her possession. k. After the IG's response, she continued to pursue her VA disability claim. The VA found her to be 100 percent (%) totally and permanently disabled. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 6 January 1984 * Orders 141-060, issued by the Joint Force Headquarters, ALARNG, on 20 May 2004 * DD Form 2795 (Pre-Deployment Health Assessment), dated 14 June 2004 * DD Form 689 (Individual Sick Slip), dated 29 December 2004 * Standard Form (SF) 600 (Chronological Record of Medical Care), documenting medical treatment on 29 December 2004 and 2 January 2005 * DD Form 214 for the period ending 21 August 2005 * extract of her treatment records from Rush Foundation Hospital, Meridian, MS, dated on or about 10 September 2006 * several pages of VA Progress Notes, documenting treatment received on or about 20 September 2006 * DA Form 3349 (Physical Profile), electronically signed on 30 March and 1 April 2009 * memorandum from the ALARNG, dated 29 April 2009, subject: Notification of Medical Disqualification * memorandum from the applicant addressed to the ALARNG, dated 16 August 2009, subject: Medical Disqualification Disposition Election * NDR-PEB Checklist * PEB Fact Sheet/Counseling Statement (Non-Duty Related Cases) * Information and Instructions for Completing PEB Packets * medical documentation from an unknown source, dated 14 April 2009 * DA Form 4187, signed by her commander on 9 September 2009 * email messages from Staff Sergeant (SSG) JAB, dated 4 and 5 November 2009 * four separate forms titled "Basic Activities for Soldiers Consult – General," dated on or about 1 December 2009 * VA fax transmittal, dated 2 December 2009 * email message from SSG JAB, dated 3 December 2009 * email message from Sergeant (SGT) DLT, dated 4 December 2009 * fax cover sheet, dated 29 July 2010 * memorandum from the ALARNG, dated 27 September 2010, subject: Notification of Medical Disqualification * National Guard Bureau (NGB) Form 23A (ARNG Current Annual Statement), prepared on 4 October 2010 * typed letter from the applicant, to whom it may concern, dated 6 November 2010 * extract of a memorandum from the Office of the Deputy Chief of Staff for Personnel (DCSPER), ALARNG, date unknown * two DA Forms 2173 (Statement of Medical Examination and Duty Status), dated 18 February 2011 * Personnel Qualification Record – Enlisted, dated 26 April 2011 * NGB Form 23B (ARNG Retirement Points History Statement), prepared on 26 April 2011 * email from SSG KFT, dated 26 April 2011 * DA Form 4187, signed by her commander on 26 April 2011 * Orders 132-541, issued by the ALARNG on 12 May 2011 * Soldier's Rights and Warning Statement, dated 14 May 2011 * Disability Counseling Statement, dated 14 May 2011 * NGB Form 22 (Report of Separation and Record of Service), dated 15 May 2011 * NGB Form 23B, prepared on 18 May 2011 * memorandum from the ALARNG, dated 20 May 2011 * email from Captain (CPT) JPK, dated 29 June 2011 * email from Sergeant First Class (SFC) TLH, dated 7 July 2011 * letter from the Chief, Case Management Division, Army Review Boards Agency (ARBA), dated 26 September 2011, with supporting application adjudicated under Docket Number AR20110018127, on 26 September 2011 * letter from the Office of the IG, ALARNG, dated 18 October 2012 * VA Decision Letter, dated 22 December 2014 * extract of Department of Defense Instruction (DoDI) 1332.38 (Physical Disability Evaluation), Part I 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. Following prior service in the U.S. Coast Guard, the applicant enlisted in the ARNG on 20 September 2000. She enlisted for military occupational specialty (MOS) 88M (Motor Transport Operator) and was assigned to Detachment 2, 2101st Transportation Company, ALARNG. 3. The applicant was awarded MOS 88M as her primary MOS effective 1 August 2002. 4. The applicant was promoted to the rank/grade of sergeant (SGT)/E-5 effective 15 January 2004. 5. Orders 141-060, issued by the ALARNG on 20 May 2004, ordered the applicant to active duty as a member of her Reserve component unit in support of Operation Iraqi Freedom for a period not to exceed 544 days, effective 7 June 2004. 6. The applicant entered active duty on 7 June 2004 and served in Iraq from 2 August 2004 through 15 July 2005. Her Pre-Deployment Health Assessment shows she was in very good physical condition prior to her deployment with no noted medical problems. 7. The applicant provides several Chronological Records of Medical Care completed during her deployment to Iraq, which show she was treated for joint pain, numbness in her upper body and extremities, and difficulty sleeping. 8. The applicant was honorably released from active duty on 21 August 2005 by reason of completion of required active service and returned to her ALARNG unit. 9. The applicant's available records are void of any documentation that shows she suffered a condition that caused her to fail retention standards or that shows she was later determined to be unfit for further service as of the date of her release from active duty. 10. The applicant's record contains a DA Form 2173, initiated on 5 November 2005, which documents her line of duty (LOD) status and notes her "on-going, intermittent, joint pain in upper extremities. Tx [treatment] historically [includes] NSAID [nonsteroidal anti-inflammatory drug]. Continues to c/o [complain of] pain." A Health Systems Specialist with the ALARNG determined that her LOD investigation was not approved for IN LINE OF DUTY for intermediate joint pain. The official directed that the LOD packet be filed in her medical record as an administrative LOD only, as a permanent record of her illness/issue only. 11. The applicant's record contains a DA Form 3349, dated 1 April 2009, which shows she was issued a permanent physical profile with a PULHES (acronym used to address factors comprising the Military Physical Profile Serial System) of "3-3-3-1-1-3." This physical profile form contains the statement "SM referred for PEB. SM diagnosed with depression, osteoarthritis, and asthma. SM has multiple limitations." 12. The applicant provides a memorandum from the ALARNG, dated 29 April 2009, which shows she was notified of the following: a. A review of her available medical records had revealed one or more medical conditions that disqualified her for retention in the ALARNG. The noted conditions, followed by the associated references from Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, were: (1) Depression – Army Regulation 40-501, paragraph 3-32c (2) Osteoarthritis, Left Foot, Bi-lateral Hands – Army Regulation 40-501, paragraph 3-14c (3) Asthma – Army Regulation 40-501, paragraph 3-27d b. She had two options for the disposition of her case. She was instructed to indicate her choice on the enclosed Disposition Election Memorandum no later than the noted suspense date of 17 July 2009. (1) Option 1: She could elect to be discharged from the ALARNG. If she elected discharge, she would receive an Honorable Discharge Certificate. If she had at least 15 years but less than 20 years of creditable service for retirement, she would be entitled to receive retirement benefits at age 60 and would be issued a retirement eligibility memorandum. If she had 20 years of creditable service and had been issued a retirement eligibility memorandum, she would be entitled to receive retirement benefits at age 60. (2) Option 2: She could elect consideration by an NDR-PEB. She was informed that an NDR-PEB review would be limited to a fitness determination; there would be no rating or compensation as a result of this board. It would consider her medical records, non-medical administrative documentation, such as Officer Evaluation Reports, Noncommissioned Officer Evaluation Reports, Army Physical Fitness Test results, and commander's recommendations, and any other information that she wished to submit. Failure to provide any and all documentation by the noted suspense date would result in her being medically discharged on or after the noted suspense date. c. If she elected consideration by an NDR-PEB, she was required to assemble legible photocopies of all documents required for the NDR-PEB case file. These documents must be sent, by her unit, to the Health Services Office, no later than the suspense date indicated. The Health Services Office was responsible for assisting her on her rights under each phase of disability evaluation. d. She was responsible for any professional or administrative fees involved in securing copies of her medical and administrative records. Failure to provide all required documents would delay processing of her case. e. While she was in the NDR-PEB process, she was not authorized to perform any active military service until her medical issue was resolved. She may attend inactive duty (IDT) and also obtain retirement points during this period by completing military correspondence courses. f. If her unfitting medical condition was incurred or aggravated while performing active duty or inactive duty for training, she must provide copies of the approved LOD, DA Form 2173 in accordance with Army Regulation 600-8-4 (LOD Policies, Procedures, and Investigations) no later than the noted suspense date. The PEB would not entertain discussion, review, or debate issues related to LOD, permanent service aggravation, or entitlement to disability consideration. g. This memorandum constituted her notification of separation. Failure to respond by the suspense date would result in her being discharge from the ALARNG. 13. The applicant provides her response memorandum, dated 16 August 2009, wherein she elected Option 2, consideration of her case by an NDR-PEB. It is noted that this election form is dated approximately 30 days after the noted suspense date of 17 July 2009. 14. A DA Form 4187, dated 9 September 2209, shows an official of the ALARNG approved an extension of the applicant's enlistment for the purpose of physical disability processing, thereby extending her expiration term of service (ETS) date from 17 September 2009 to 16 December 2009. 15. The applicant provides: a. Email messages from SSG JAB, addressed to other military members of the ALARNG and dated 4 and 5 November 2009, wherein the applicant's option election and ETS extension were noted. b. An email message from SSG JAB, addressed to other military members of the ALARNG and dated 3 December 2009, wherein the applicant's four separate records of treatment from the VA were noted. These Basic Activities for Soldiers Consult – General document her evaluation and treatment by the VA for four conditions: hypertension; osteoarthritis; asthma; and acid reflux disease. c. An email message from SGT DLT, addressed to other military members of the ALARNG and dated 4 December 2009, wherein SGT DLT instructs another noncommissioned officer to inform the applicant that she had until 21 December 2009 to forward her documentation to the ALARNG Health Services Office if she wished to be consideration by an NDR-PEB. It appears this was the applicant's second notification of medical disqualification; however, a second Notification of Medical Disqualification memorandum is not available for review. 16. The applicant provides a memorandum from the ALARNG, dated 27 September 2010 and nearly identical to the memorandum dated 29 April 2009, which appears to be a second, if not third, notification of medical disqualification by the ALARNG. The memorandum shows she was notified of the following: a. A review of her available medical records had revealed one or more medical conditions that disqualified her for retention in the ALARNG. The noted conditions, followed by the associated reference from Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, were: (1) Asthma – Army Regulation 40-501, paragraph 3-27d (2) Carpal tunnel syndrome – Army Regulation 40-501, paragraph 3-12b(3) (3) Severe acid reflux – Army Regulation 40-501, paragraph 3-41e(1) (4) Depression – Army Regulation 40-501, paragraph 3-32c b. She had two options for the disposition of her case. She was instructed to indicate her choice on the enclosed Disposition Election Memorandum, no later than the noted suspense date of 6 December 2010. 17. The applicant responded by memorandum on 6 November 2010, wherein she contended that neither option applied to her: a. Option 1 provided for entitlement to receive retired pay if a Soldier has at least 15 but less than 20 years; however, she had only 14 years as of 19 August 2010. b. Option 2 provided that the Soldier must request consideration by an NDR-PEB. This option did not apply to her since her medical conditions were all duty related and she needed to be evaluated under the Physical Disability Evaluation System (PDES). 18. The applicant provides a Statement of Medical Examination and Duty Status, completed on 18 February 2011 and signed by a unit commander on 14 May 2011, which appears to suggest the applicant's VA-diagnosed PTSD, diagnosed on an undetermined date, resulted from her deployment to Iraq in 2004-2005 and was determined to be "In Line of Duty." 19. Orders 132-541, issued by the ALARNG on 12 May 2011, discharged the applicant from the ARNG and the Reserve of the Army, effective 15 May 2011, in accordance with Army Regulation 40-501, chapter 3 and National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-35l(8). 20. The applicant's NGB Form 22 shows she was honorably discharged on 15 May 2011, by reason of medical unfitness. 21. The applicant's ARNG Retirement Points History Statement, prepared on 18 May 2011, shows she was credited with 14 years, 7 months, and 26 days of creditable service for retired pay as of 15 May 2011, the date of her discharge. 22. A response from the Office of the IG, dated 18 October 2012, documents the IG's inquiry into the applicant's request for assistance. The inquiry revealed that: * the applicant was sent three Notification of Medical Disqualification letters – two with a 75-day suspense time and one with a 45-day suspense; in each instance the applicant failed to respond * the applicant was discharged in accordance with NGR 600-200, paragraph 6-35l(8) * the applicant could appeal her discharge to The Adjutant General of the State of Alabama, and if unsuccessful, she could appeal that decision to the ABCMR 23. The applicant provides her VA Decision Letter, dated 22 December 2014, which shows she was granted service-connected disability, in the amount of 100%, based on numerous medical conditions including: * chronic fatigue syndrome – 60% * headaches – 50% * sacroiliac weakness – 20% * limitation of abduction of the thigh due to unknown etiology, right hip – 20% * limitation of abduction of the thigh due to unknown etiology, left hip – 20% * limitation of extension of the thigh due to unknown etiology, right hip – 10% * status post muscle group VII injury (flexion of wrist and fingers), left upper extremity (claimed as muscle pain) – 10% * status post muscle group VII injury (extension of wrist and fingers), left upper extremity (claimed as muscle pain) – 10% 24. In the processing of this case, an advisory opinion was obtained on 9 August 2016 from the Deputy State Surgeon, ALARNG, who stated: a. I have reviewed the files and information that was provided to me. The documents show that SGT [Applicant] was notified on 29 April 2009 as having a condition that was medically disqualifying. SGT [Applicant] failed to respond to the suspense dates. SGT [Applicant] was then given two further suspense dates that she failed to respond to. SGT [Applicant] was then discharged on 15 May 2011 under NGR 600-200, Enlisted Personnel Management. b. SGT [Applicant] failed to respond and submit required documentation for a Formal Line of Duty (LOD) to document that her medical conditions occurred In the Line of Duty. In all SGT [Applicant] was given three separate 45 day suspense dates that she failed to respond to. In addition, there was never an approved LOD for SGT [Applicant]. Without an LOD the case will be adjudicated through a Not in the Line of Duty/PEB [NDR-PEB]. c. Given the information that I have been provided, I feel that SGT [Applicant] was properly discharged from the ALARNG. SGT [Applicant] repeatedly failed to provide the requested medical documentation for over 2 years. 25. In the processing of this case, an advisory opinion was obtained on 13 September 2016 from the Deputy Chief, Personnel Policy Division, NGB, who recommended disapproval of the applicant's request for relief, further stating: a. The Soldier was notified on 29 April 2009 that she had medically disqualifying conditions and would have to elect either discharge from the ALARNG or consideration by an (NDR-PEB) for determination of fitness. The Soldier states she signed her election on 16 August 2009. The Soldier states she was notified on two other occasions with the same memorandum dated 29 April 2009 and a suspense of 17 July 2009. The Soldier received another memorandum dated 27 September 2010 that notified her of her medically disqualifying conditions and opportunity for election. In total, SGT [Applicant] received three notifications of her medically disqualifying conditions and request for election of discharge or NDR-PEB. b. In March of 2011 the Soldier submitted documents to initiate an LOD review. The ALARNG Health Service Office forwarded the Soldier a memorandum, dated 20 May 2011, requesting more information to complete her LOD. c. The Soldier was honorably discharged from the Alabama Army National Guard 15 May 2011. d. The Soldier believed she was improperly and unfairly discharged from the ALARNG and filed a complaint with the ALARNG Office of the IG. The IG determined she was discharged in accordance with NGR 600-200, Enlisted Personnel Management, paragraph 6-35l(8). e. To be eligible for duty-related medical processing, a Reserve Component Soldier not on active duty must have a medically unacceptable condition and the medical condition must be related to service either by being incurred while on active duty or when not incurred while on active duty, have permanently aggravated by military service. A duty-related condition is normally validated by an approved LOD determination. The Soldier was notified after discharge for the request of additional information because the LOD submitted in March was not signed until 14 May 2011 (the day before discharge) by the unit administrator, not the Commander. The Soldier does not have an approved LOD. f. The Soldier contends the VA determined her injuries were service-connected and awarded her a rating of 100%. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty. g. The Soldier provides email communication to SSG JAB, who acknowledges the Soldier's election for a NDR-PEB. The emails provided were internal emails for members of the Soldier's unit. Although it seems there was failure by the unit to submit the Soldier's election, a NDR-PEB does not determine physical disability or medical retirement as requested by the Soldier in her DD Form 149. A determination of fitness for duty can only be rendered by a NDR-PEB. h. This office requested additional medical documentation from SGT [Applicant] on 24 August 2016. The documents were forwarded to the ARNG Office of the Chief Surgeon. After a review of the documents, the Chief Surgeon determined "There is no evidence to support the Soldier's request for medical retirement. This office recommends denial to the Soldiers request for Medical Retirement." i. This advisory opinion was coordinated with the NGB Medical Actions Branch. The ALARNG concurs with this recommendation. 26. The applicant was provided a copy of the NGB advisory opinion on 14 September 2016, in order to allow her the opportunity to submit comments or a rebuttal. a. In a letter dated 29 September 2016, the applicant replied that she had reviewed the NGB advisory opinion. She was in the process of collecting additional documents in support of her request for medical retirement and she was awaiting her medical records from the National Personnel Records Center (NPRC). She requested a 30 day extension of her suspense date for submitting additional documents in consideration of her request. b. In a second letter dated 6 November 2016, the applicant replied that she is continuing to do her best to gather documents in support of her request for correction of her military records to upgrade her separation to a military disability retirement. She is still waiting on her requested medical records from the NPRC. At this time, she still hasn't received the documents; therefore, she requests a second extension of her suspense date for submitting additional documents in consideration of her request, for an additional 90 days beyond the agreed suspense date of 14 November 2016. REFERENCES: 1. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides guidance on the various medical conditions and physical defects that may render a Soldier unfit for further military service, and that fall below the standards required for service. These medical conditions and physical defects, individually or in combination, are those that: significantly limit or interfere with the Soldier’s performance of their duties; may compromise or aggravate the Soldier’s health or well-being if the Soldier were to remain in the military Service; may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the Government if the individual Soldier were to remain in the military Service. b. Paragraph 3-4 (General Policy) provides that Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service. Physicians are responsible for referring Soldiers with conditions listed below to an MEB. It is critical that MEBs are complete and reflect all of the Soldier’s medical problems and physical limitations. The PEB will make the determination of fitness or unfitness. The PEB, under the authority of the U.S. Army Physical Disability Agency, will consider the results of the MEB, as well as the requirements of the Soldier’s MOS, in determining fitness. c. Chapter 7 (Physical Profiling), paragraph 7-11a(3)(d), provides that the DA Form 3349 will specify the profile type - temporary or permanent. If the profile is permanent, the profiling officer must assess whether the Soldier meets the retention standards of Army Regulation 40-501, chapter 3. Those Soldiers who meet retention standards but have at least a permanent "3" or "4" PULHES serial will be referred to an MMRB in accordance with Army Regulation 600–60 (Physical Performance Evaluation System), unless waived by the MMRB convening authority. Those Soldiers who do not meet retention standards must be referred to an MEB in accordance with chapter 3. d. Chapter 10 (ARNG) provides guidance on the basic policies, standards, and procedures for medical examinations and physical standards for ARNG and Army National Guard of the United States (ARNGUS) Soldiers. Paragraph 10-25 (Soldiers pending separation for failing to meet medical retention standards) provides that: (1) Soldiers with non-duty related impairments are eligible to be referred to a PEB solely for a fitness determination, but not a determination of eligibility for disability benefits. Determination of whether a non-duty case is forwarded to the PEB is at the request of the Soldier. The Soldier will have a completed LOD or memo that notifies him or her of non-duty related findings (Not in the Line of Duty – NILOD). The Soldier may not challenge the PEB findings in person. (2) Soldiers pending separation for In the Line of Duty (ILOD) injuries or illnesses will be processed in accordance with Army Regulation 40–400 (Patient Administration) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 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 office, grade, rank, or rating. a. Paragraph 1-1 (Purpose) provides that the Army PDES was established under the provisions of Title 10, U.S. Code (USC), Chapter 61, (10 USC 61) and Department of Defense Directive (DoDD) 1332.18 (Disability Evaluation System (DES)). It 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. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. The objectives of the PDES are to: * maintain effective and fit military organizations with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier are protected b. Paragraph 2–10 (Board Elements) provides that the Army PDES consists of Medical Evaluation Boards (MEB), which are a function of the Army Medical Department (AMEDD), Physical Evaluation Boards (PEB) conducted under the auspices of the USAPDA, and case reviews, when applicable, as conducted by the USAPDA. c. Paragraph 3-1 (Standards of Unfitness because of Physical Disability) 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, grade, rank, or rating. 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. d. Paragraph 3-2b (Presumptions – Processing for Separation or Retirement from Active Service) provides, in pertinent part, that 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. The presumption of fitness may be overcome if the evidence establishes that: (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. e. Paragraph 3-4 (LOD Decisions) provides that 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 severance pay benefits: (1) 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 training (IDT) and (2), 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. f. Paragraph 3-5 (Use of the VA Schedule from Rating Disabilities (VASRD)) provides, in pertinent part, that only the unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. g. Chapter 4 (Eligibility for Disability Evaluation) provides, in pertinent part, that the following individuals/entities may refer a Soldier into the Army PDES: (1) The Commander, U.S. Army Human Resources Command (HRC), upon the recommendation of The Surgeon General, may refer a Soldier to the responsible medical treatment facility (MTF) for medical evaluation when a question arises as to the Soldier’s ability to perform the duties of his or her office, grade, rank, or rating because of physical disability. (2) Commanders of MTFs who are treating Soldiers in an assigned, attached, or outpatient status may initiate action to evaluate the Soldier’s physical ability to perform the duties of their office, grade, rank, or rating. (3) When a commander believes that a Soldier of their command is unable to perform the duties of their office, grade, rank, or rating because of physical disability, the commander will refer the Soldier to the responsible MTF for evaluation. The request for evaluation will be in writing and will state the commander’s reasons for believing that the Soldier is unable to perform his or her duties. h. Paragraph 4-10 (MEB) provides that MEBs 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 qualification for retention based on the criteria in Army Regulation 40–501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. i. Paragraph 4-17 (PEB) provides that PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army. The PEB is not a statutory board. Its findings and recommendations may be revised. It is a fact-finding board for the following: (1) Investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. (2) Evaluating the physical condition of the Soldier against the physical requirements of the Soldier’s particular office, grade, rank, or rating. (3) Providing a full and fair hearing for the Soldier as required by under Title 10, USC, Section 1214, (10 USC 1214). (4) Making findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability (10 USC 61). j. Chapter 8 (Reserve Components), paragraph 8-2 (Eligibility), provides that Reserve component Soldiers are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training. k. Paragraph 8-3 (Proximate Result) provides, in pertinent part, that in order for Reserve Component Soldiers to be compensated for disabilities incurred while performing duty for 30 days or less, to include IDT, there must be a determination by the PEB that the unfitting condition was the proximate result of performing duty. This determination is different from an LOD determination which establishes whether the Soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved. Proximate result establishes a causal relationship between the disability and the required military duty. l. Paragraph 8-6 (Medical Processing) provides, in pertinent part, that when a commander believes that a Soldier not on extended active duty is unable to perform his or her duties because of physical disability, the commander will refer the Soldier for medical evaluation. The MTF commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation. The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition. If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. If the Soldier is not eligible for referral to a PEB, the MTF will notify the Soldier’s unit commander for disposition under applicable regulations. m. Paragraph 8-9 (Disposition) provides that a Soldier not on extended active duty, who is unfit because of physical disability: (1) May be permanently retired or have his or her name placed on the TDRL, if: he or she has at least 20 years of service; his or her disability is rated at 30 percent or more; or his or her disability occurred in the line of duty and was the proximate result of performing active duty or IDT. (2) May be separated with severance pay if: his or her disability is rated at less than 30 percent; he or she has less than 20 years of service; or his or her disability occurred in the line of duty and was the proximate result of performing active duty or IDT. (3) May forfeit severance pay; be transferred to the Retired Reserve; and receive under the provisions of Title 10, U.S. Code, Section 12731, (10 USC 12731) non-disability retired pay at age 60, if at least 20 qualifying years of service for retirement have been completed and transfer to the retired Reserve is requested. According to the provisions of 10 USC 1209 and 1213, all rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve. Disability severance pay (unlike readjustment and separation pay) cannot be repaid for the purposes of receiving retired pay. (4) Will be separated without benefits when: the unfitting condition results from injury which is due to intentional misconduct or willful neglect; the disability was incurred during a period of unauthorized absence; or the disability was not incurred or aggravated as the proximate result of performing duty as specified in paragraph 8–2. 3. National Guard Regulation 600-200 governs the policies and procedures for assigning, attaching, removing, and transferring enlisted Soldiers of the ARNG/ARNGUS. Paragraph 6-35l(8), of the regulation in effect at the time, provided for the separation of ARNG Soldiers who are medically unfit for retention per Army Regulation 40-501. Commanders, who suspected that a Soldier may not have been medically qualified for retention, would direct the Soldier to report for a complete medical examination per Army Regulation 40-501. Commanders who did not recommend retention would request the Soldier’s discharge. When the medical condition was incurred in line of duty, the procedures of Army Regulation 600-8-4 would apply. Discharge would not be ordered while the case was pending final disposition. 4. DoDI 1332.38 implements policy, assigns responsibilities, and prescribes procedures for: * retiring or separating Service members because of physical disability * making administrative determinations for Service members with Service-incurred or Service aggravated conditions * authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty 5. DoDI 1332.28, definition E-2.1.20, defines NDR impairments as "impairment of members of the RC [Reserve Components] that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation. Members with NDR impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits. The determination of whether a case is forwarded to the PEB as an NDR case (as opposed to a duty-related case) rests with the RC." 6. Title 10, U.S. Code, 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. The U.S. Army Physical Disability Agency, under the operational control of the Commander, HRC, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DoDD 1332.18 and Army Regulation 635-40. 7. Title 10, U.S. Code, section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement. It states that a person is entitled, upon application, to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title, and is not entitled under any other provision of law to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve. 8. Title 10, U.S. Code, section 12731b provides a special rule for members with physical disabilities not incurred in the line of duty. It states, in pertinent part, that in the case of a member of the Selected Reserve of a Reserve component who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes. This special provision of the law is applicable only to members who are medically disqualified for continued service in a Reserve component. 9. 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 30 percent. 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. 10. Title 38, U.S. Code, sections 1110 and 1131, permits 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 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. These two government agencies operate under different policies. 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 applicant requests correction of her records to show she was medically retired by reason of disability. 2. The applicant served in Iraq from 2 August 2004 through 15 July 2005. She provides several Chronological Records of Medical Care, completed during her deployment to Iraq, which show she was treated for joint pain, numbness in her upper body and extremities, and difficulty sleeping. 3. The applicant was honorably released from active duty on 21 August 2005, by reason of completion of required active service at the conclusion of her deployment, and returned to her ALARNG unit of assignment. Her available records are void of any documentation that shows she suffered a condition or conditions that caused her to fail retention standards, or that shows she was later determined to be unfit for further service as of the date of her release from active duty. 4. The applicant's record contains a DA Form 2173, initiated on 5 November 2005, which documents her LOD status; however, a Health Systems Specialist with the ALARNG determined that her LOD investigation was not approved as in LOD for intermediate joint pain. The official directed that the LOD packet be filed in her medical record as an administrative LOD only, as a permanent record of her illness/issue only. 5. In 2009, the applicant was determined to be medically unfit by officials of the ALARNG. Her record shows she suffered from numerous medical conditions that disqualified her for retention in the ALARNG. The applicant's record does not establish a causal link between her unfitting medical conditions and her military service. 6. The applicant was given the option of electing consideration of her case by an NDR-PEB, which she contends she elected. However, according to an ALARNG official, she failed on three occasions to respond with the appropriate and necessary documentation by the established suspense dates. It appears she did elect consideration of her case by an NDR-PEB; however, it is unclear as to whether or not she complied with the requirement to submit additional documentation prior to consideration. 7. The applicant was discharged from the ALARNG on 15 May 2011. As of her discharge date, she had accumulated 14 years, 7 months, and 26 days of creditable service for retired pay. 8. The applicant contends her discharge was improper and unfair, leaving her with no retirement benefits and no medical treatment options for health problems that were incurred and aggravated during military service. 9. The applicant confuses a PEB under the PDES and an NDR-PEB. a. To be eligible for duty-related medical processing, an RC Soldier not on active duty must have a medically unacceptable condition and the medical condition must be related to service either by being incurred while on active duty or when not incurred while on active duty, have been permanently aggravated by military service. A duty-related condition is normally validated by an approved LOD determination. b. An NDR PEB is a non-LOD PEB that reviews the Soldier's condition solely for a determination of fitness for continued service in the RC. 10. After considering the applicant's case, an NDR-PEB would have found her either fit or unfit. If found unfit, she would have been discharged since she did not have at least 15 years of service and she was not eligible for a Notice of Eligibility for Retired Pay Upon Age 60 (15 Year Letter). Medical retirement was not an option because her conditions were not shown to have been incurred while she was on active duty or aggravated while serving on active duty to such an extent as to render her unfit for further service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015551 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2