IN THE CASE OF: BOARD DATE: 26 October 2017 DOCKET NUMBER: AR20150018785 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: 26 October 2017 DOCKET NUMBER: AR20150018785 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: 26 October 2017 DOCKET NUMBER: AR20150018785 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 defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant's DA Forms 3947 (Medical Evaluation Board (MEB) Proceedings) and its associated narrative summary and DA Form 199-1 (Formal Physical Evaluation Board (PEB) Proceedings) by adding additional medical conditions and then increasing his combined disability rating. He also requests the applicant be promoted to lieutenant colonel (LTC) with entitlement to back pay and allowances from the date of his retirement (1 September 1995). 2. Counsel states: a. All available evidence was not considered by the MEB and was not presented to the PEB in order for them to render an appropriate rating. b. The applicant did not receive appropriate legal counsel concerning his appeal of the PEB's rating. c. The applicant met all the requirements for promotion to LTC upon retirement yet was retired as a major (MAJ), pay grade O-4. 3. Counsel provides a 56-page supplemental statement, in which he states the applicant was injured in a parachuting accident. All his medical conditions were not properly recorded in the medical narrative summary (NARSUM), the MEB and its subsequent PEB. Counsel identifies multiple discrepancies within the applicant's NARSUM. In pertinent part, counsel states: a. The applicant's initial disability rating of 10 percent for traumatic brain injury (TBI) with secondary effects (headaches and memory loss) should be increased to a higher rating commensurate with the evidence. Subsequent to the increase in his disability rating, the applicant should receive all back pay and allowances from the date of the original PEB determination to the present with interest. b. Four medical conditions should have been included in the NARSUM and then rated by the MEB and referred to the MEB. The four medical conditions include migraine headaches, tinnitus, major depressive disorder and mechanical lower back pain. c. Further consideration of his claim of service-related spinal damage with lower back and neck pain. d. Due to the number and nature of physical and mental disabilities the applicant suffers, he should be rated as totally disabled. e. The applicant is not appealing the PEB ratings for his left knee, left ankle and pes planus. f. His rights to competent representation were violated when his assigned military attorney failed in her duties of due diligence during his 1999 appeal of his PEB. g. There are numerous errors prejudicial to rendering a just disability rating. It begins with the day of the parachuting accident, the conduct of the fitness for duty MEB medical examination, the creation of the NARSUM, the process of the PEB in coming to a decision, and finally the applicant's counsel to aid and represent him before a formal PEB. h. Counsel provides * Exhibit 1: Letter from Dr. EB, dated 26 February 2015 * Exhibit 2: Standard Form (SF) 88 (Report of Medical Examination) dated 18 September 1994 * Exhibit 3: Neurological Evaluation provided by Dr. DS, dated 21 July 1998 * Exhibit 4: Psychiatric Evaluation, dated 21 July 1998 * Exhibit 5: Vita (partial), Dr. EDB, Ph. D. * Exhibit 6: Letter from Dr. EDB, dated 19 January 1999, concerning questions regarding the 25 September 1998 neurological evaluation * Exhibit 7: Letter from Dr. EDB, dated 23 October 1998 * Exhibit 8: Letter from Dr. EDB, dated 13 October 1998, providing a neurological consultation report * Exhibit 9: Letter from Dr. EDB, dated 19 January 1999, concerning questions regarding the 25 September 1998 neurological evaluation * Exhibit 10: DA Form 199 (PEB Proceedings) dated 4 December 1998 * Exhibit 11a: Memorandum provided by the applicant's spouse to the Department of Veterans Affairs (VA), dated 18 November 2011 * Exhibit 11b: Memorandum provided by the applicant's daughter, undated * Exhibit 11c: Memorandum provided by the applicant's daughter dated 21 November 2011 * Exhibit 11d: Memorandum provided by the applicant's son, undated * Exhibit 12: Applicant's list of residual effects from an injury he received in January 1996 * Exhibit 13: Report from Neurological Associates of Northern Utah dated 6 May 2015 * Exhibit 14: Letter from Audiology Professionals, Inc., reporting the applicant's hearing and tinnitus examinations, dated 11 May 2012 * Exhibit 15: History of Hearing Loss Graphs * Exhibit 16: NARSUM dated 29 October 1998 * Exhibit 17: General Memory Effects on the Applicant's Daily Living * Exhibit 18: Applicant's statement sent 17 February 1998 to his commander and the State Surgeon * Exhibit 19: Summary of the applicant's treatments for major depressive disorder dated 17 November 2009 * Exhibit 20: VA Rating of 70 percent for persistent depressive disorder effective 31 March 2014 with a combined disability rating of 90 percent * Exhibit 21: Memorandum for Record, subject: Commander's Performance Statement, dated 16 June 1998 * Exhibit 22a: Orders D38-5, U. S. Total Army Personnel Command, dated 1 March 1999 * Exhibit 22b: Orders D38-5, U. S. Total Army Personnel Command, dated 1 March 1999 * Exhibit 22c: Orders D166-2, U. S. Army Physical Disability Agency, dated 14 June 2004 * Exhibit 23: Utah National Guard memorandum, subject: Selection for Promotion under Provisions of Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) * Exhibit 24: DA Form 67-8 (Officer Evaluation Report) for the period 1 September 1995 through 31 August 1996 * Exhibit 25a: Headquarters, 19th Special Forces Group, memorandum: subject: Medical Duty Review Board [applicant], dated 21 April 1997 * Exhibit 25b: Memorandum for Record, subject: Commander's Performance Statement, dated 16 June 1998 * Exhibit 26: National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Exhibit 27: SF 88 and SF 93 (Report of Medical History) dated 18 September 1994 * Exhibit 28: Two DA Forms 705 (Army Physical Fitness Test Scorecards) * Exhibit 29: Orders 068-008, Headquarters, Utah National Guard, dated 9 March 1999 * Exhibit 30: Consultation Sheet dated 16 July 1996 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 27 January 1996 * Applicant's Chronology of Events * Applicant's statement dated 5 December 1997 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant, a commissioned Reserve officer of the Utah Army National Guard (UTARNG), held the rank of major with a date of rank of 27 October 1988. He was an Infantryman who was a qualified parachutist. 3. On 26 January 1996, the applicant was participating in UTARNG airborne training operations when he was injured. The details of the accident recorded on a DA Form 2173 show he was exiting the aircraft off the center of the ramp when he was struck in the head and knocked backwards into an upside down position. His left leg became entangled in the main parachute lift web stretching his knee and pulling his leg muscle. He suffered a hard parachute landing fall and medical help was summoned. He was treated as an outpatient by the 75th Medical Group. His injury was considered in the line of duty while performing inactive duty training and no formal line of duty investigation was required. 4. A NARSUM, dated 29 October 1998, shows the applicant complained of knee and ankle pain, headaches, dizziness and memory loss with difficulty concentrating (post-concussion syndrome). a. The applicant sustained a left knee dislocation and combined ligament injury during a training parachute jump in January 1996. The initial evaluation at the time documented that he had a left tibia plateau fracture which was treated with casting, immobilization and eventually crutches. He also sustained a closed head injury with a brief loss of consciousness. After evaluation, it was found that the applicant had suffered anterior cruciate ligament damage as well as posterior cruciate damage. He underwent anterior cruciate ligament reconstruction as well as posterior cruciate ligament reconstruction utilizing allograft material. b. The applicant sustained a closed head injury and had symptoms of post-concussion syndrome. He was evaluated by a neurologist on 21 July 1998. The medical assessment shows he had typical symptoms of post-concussion syndrome. A brain magnetic resonance imaging (MRI) was normal. He reported headaches which were associated with post-concussion syndrome. He had declined daily prophylactic medication and continued to use Tylenol or ibuprofen to treat his headaches. c. The applicant was evaluated by a psychiatrist who determined he had occupational problems and exhibited moderate stress concerning his future career choices. A Global Assessment of Functioning (GAF) shows he scored a GAF of 65 with mild symptoms, but was generally functioning quite well. He expressed a desire to continue with psychiatric follow-up therapy/treatment. d. Upon physical examination, the applicant's had moderate to severe high frequency hearing loss, deformity of the left knee with posterior instability, and corrected vision of the right eye. Consultations were obtained from orthopedic, neurology and psychiatry services. e. The diagnoses included: * severe left knee injury with tibial plateau fracture, anterior cruciate ligament injury and posterior cruciate ligament injury * left ankle instability consistent with anterior talofibular ligament sprain * post-concussion syndrome secondary to closed head trauma * history of mechanical low back pain * moderate to severe high frequency hearing loss * history of pes planus f. The physical demands of his military occupational specialty (MOS) were heavy. His knee functionality was stable for activities of daily living, but he was unable to perform the physical duties of his MOS which included heavy lifting, running and parachuting. g. A profile recommendation for his lower extremities "L" was three (3). All other areas including hearing, eyes, and psychiatry were rated one (1). His duty restrictions included no forced marching, no heavy lifting, and alternate aerobic activity. h. An addendum from neuropsychiatric testing shows a psychiatrist diagnosed the applicant with post-traumatic stress disorder (PTSD) and chronic pain syndrome related to his leg injury. 5. An MEB convened on 2 November 1998. The applicant did not present any views in his own behalf. The MEB proceedings show in: a. Item 13 (Diagnosis): (1) Status post severe left knee injury with approximate date of injury in 1996. * Tibial plateau fracture * Left ankle instability consistent with anterior talofibular ligament sprain * Posterior cruciate ligament injury status post reconstruction with residual instability (2) Left ankle instability consistent with anterior talofibular ligament sprain. (3) Post-concussion syndrome secondary to closed head trauma with date of injury in 1996. (4) History of mechanical low back pain with an unknown date of injury. (5) Moderate-to-severe high-frequency hearing loss with an unknown date of injury. (6) History of pes planus with an unknown date of injury. (7) PTSD with an approximate date of injury in 1998. (8) Chronic pain syndrome related to the leg injury with a date of injury in 1998. b. Item 14 (Board Recommendation) the board recommended the applicant be referred to a PEB. c. Item 15 shows the applicant did not desire to continue on active duty. d. Item 20 (Action by Approving Authority) shows the findings and recommendations of the board were approved. e. Item 24 (Action by Patient) indicates the applicant did not agree with the board's findings and recommendation. 6. The applicant appealed the MEB recommendation. He provided a 5-page narrative response wherein he stated, "…review of the MEB narrative [NARSUM]… I am attempting to communicate a very complex set of medical problems that were set in motion by a parachute jump that went bad. Ensuring the correct and complete communication of my medical problems is crucial to my mental and physical well-being." a. He stated his chief complaint should include daily headaches, dizziness, memory loss and cognitive dysfunction. In consultation with a doctor, he declined taking a "daily prophylactic medication" because this medication would not significantly improve his headaches, dizziness, memory loss and cognitive dysfunction. He requested the NARSUM include "for complete or partial relief of his headaches." He explained he has daily headaches and usually over-the-counter medication provides sufficient reduction in the pain which keeps him functioning. He stated, "I live with pain as long as I can maintain a functional level." b. He stated the psychiatrist was not professional. He hand wrote his report which included significant "parroting back information I gave him and he didn’t ask follow-up questions." This interview only lasted 30 minutes. He found the interview and report were unsatisfactory. He declined follow-up psychiatric treatment/therapy because he did not want to be treated by this psychiatrist. c. He stated he did not have the mental ability to perform at a higher level of education which contradicts the NARSUM. d. He requested the statement, "in the quantitate report by the neuropsychologist he reports continued and permanent short-term memory [loss], difficulty in concentration, and some cognitive dysfunction." He also wants to add consultations were obtained from neuropsychology service. He believes this service provided the most significant report and its findings should be given top consideration. e. His review of the MEB diagnoses appears to show them in a ranking order. For him his post-concussion syndrome should be ranked the most significant diagnosis. He states, "he is rated… in the lower 28 to 30 [percent] of the nation in memory ability, concentration, and comprehension of certain mental concepts." He states this condition is permanent. He then provided a recommended outline for his diagnoses to include corrections to the dates he incurred PTSD and chronic pain syndrome. 7. After reviewing his appeal, the MEB determined the report of the board would be forwarded to the PEB (without the recommendations of the applicant noted in his written appeal). 8. On 2 December 1998 the applicant received a permanent profile for his lower extremities which were rated "3." All other ratings were "1." 9. A PEB convened on 4 December 1998. The DA Form 199 shows the applicant was found unfit for continued military service. The PEB recommended permanent disability retirement with a combined disability rating of 40 percent. The PEB rated the applicant's conditions under the VA Schedule for Rating Disabilities (VASRD) Codes. a. VASRD Code 5257, left knee injury sustained during Airborne operations 27 June 1996 status post anterior cruciate ligament repair, posterior cruciate ligament reconstruction which failed requiring two additional surgical repairs with residuals of posterior cruciate instability requiring a protective brace for activities of daily living. There is post traumatic arthritis. The recommended disability percentage was 20 percent. b. VASRD Code 5262, left ankle instability due to attenuation of the anterior talofibular ligament sustained during airborne operations. Anterior drawer shows 1+ anterior drawer sign and while stable for activities of daily living it becomes unstable with minimal stress and is unfitting in a Special Forces officer. Rated as tibia-fibular impairment-slight with a recommended disability percentage of 10 percent. c. VASRD Code 8045 9304, post-concussion syndrome manifested as headaches and mild diminished performance on memory tasks, sustained during airborne operations, GAF 65. Rated as mild with a recommended disability percentage of 10 percent. d. Other conditions listed in the MEB proceedings were considered by the PEB and found to be not unfitting and therefore not ratable. 10. On 18 December 1998 the applicant did not concur with the recommendations of the informal PEB and requested a formal hearing. He also requested counsel to assist him. In his letter to the PEB he reiterated his concerns as outlined in his appeal of the MEB specifically expanding on the findings of the neuropsychologist. He requested a higher disability percentage for his post-concussion syndrome and permanent retirement. 11. On 23 December 1998, by letter the PEB president notified the applicant the PEB appeal was considered and the board adhered to the original findings and recommendations of the informal board. The board president stated his case had been properly evaluated in accordance with established regulations. 12. On 25 January 1999 the applicant indicated he agreed with the results of his informal PEB and waived his formal board. 13. His official military personnel file (OMPF) contains copies of: a. U. S. Army Total Personnel Command memorandum, subject: Eligibility for Promotion as a Reserve Commissioned Officer not on Active Duty, dated 5 December 1994. This memorandum shows he was selected for promotion to LTC by a Department of the Army (DA) Reserve Components Mandatory Selection Board. His effective date of promotion was 26 October 1995. b. UTARNG memorandum, subject: Selection for Promotion under provisions of AR 135-155, dated 1 February 1995. This State memorandum notified the applicant he had been selected for promotion to LTC. c. The applicant's notification to the Adjutant General, State of Utah, dated 5 August 1995, shows he declined the DA promotion to LTC. He indicated he desired to continue his assignment in his current grade and branch. He also understood if his election to decline promotion was approved, his name would be retained on the promotion list for a period of not more than 3 years. d. U. S. Total Army Personnel Command, memorandum, subject: Notification of Promotion Status, dated 25 March 1999, notified him he was not selected for promotion to LTC by a DA promotion board. 14. His OMPF also contains a DA Form 67-8 (U. S. Army Officer Evaluation Report) (OER) for the period 1 September 1995 through 31 August 1996 (Exhibit 24). This OER shows he always exceeded requirements, should be promoted ahead of peers and received a "top block" rating from the senior rater. There is no reference to any medical conditions interfering with his performance of duties. 15. Orders D38-5, Headquarters, U. S. Total Army Personnel Command, dated 1 March 1999, (Exhibit 22a) show the applicant was released from duty because of permanent physical disability. He would be placed on the retired list as a MAJ effective 25 March 1999, with a 40 percent disability rating. 16. In the processing of this case an advisory opinion was obtained from the Army Review Boards Agency Senior Medical Advisor (a medical doctor) on 31 March 2015. a. The available medical documents in the applicant's case file were reviewed. Through the presumption of government regularity it is assumed that the PEB had reviewed all necessary and relevant medical documentation submitted. b. The applicant contends that his TBI was not specifically addressed by the PEB. In the era of the applicant's service, the VASRD diagnostic code for TBI was 8045 which was not routinely used because it carried a low rating. It was not until 2008 when congressionally mandated changes in coding TBI occurred. This is most likely the reason the post-concussion syndrome secondary to closed head trauma (code 3102) was used. Additionally, closed head trauma and TBI are interchangeable. c. It is not argued that the applicant experiences the sequelae of the airborne operation parachute mishap. However, it is important to note that there are several letters included in the applicant's case file that indicate it is highly probative of his being mentally competent. His letters are nearly free of gross grammatical errors or misspellings and appear to have a chronological and methodical design. There is no record showing the applicant had any decrease in performance and it was even endorsed for him to return to his unit after physical rehabilitation. d. Therefore there is insufficient evidence to indicate that the relevant medical documentation was not reviewed during the PEB or that the post-concussion syndrome secondary to closed head trauma warrants an increase in the previously adjudged disability rating. e. The applicant is receiving VA compensation for service connected injuries. The VA operates under different rules, laws, and regulations for assigning disability percentages. The Department of Defense (DOD) determines fitness for duty and assigns a rating based on the severity of disability. The DOD does not compensate service members for anticipated future severity or potential complications of conditions that were incurred during service. 17. A copy of the advisory opinion was provided to the applicant and his counsel for review and rebuttal. His counsel responded on 18 May 2016 as follows: a. The opinion starts by applying the presumption of regularity. It must simply be noted that we overcame the presumption of regularity by demonstrating that the PEB did not in fact review a substantial number of documents related to his head injury and neurology. The presumption of regularity simply does not apply in this case. b. The key piece, however, is that the medical opinion surmises that the applicant did not have a mental deficiency based on written letters that are free from gross grammatical errors or misspellings. The reality is that the applicant's letters were heavily edited by this firm and by his daughter who is an educator. This firm may very well have upwards of 20 hours editing his letters and documents in his case. If the applicant's original drafts had been sent to this Board, the Board would have received lengthy single paragraph ramblings without clear organization. c. The fact that a Soldier retained counsel and submitted documents free from gross grammatical errors or misspellings is not a proper basis to conclude that the Soldier has had any decrease in cognitive performance related to a closed-head injury. REFERENCES: 1. Department of Defense Instruction (DODI) Number 1332.18 (Physical Disability Evaluation), dated 4 November 1996, implemented policies and procedures for separating or retiring service members based on the evaluation of physical disabilities using the Disability Evaluation System (DES). a. Paragraph E3.P1.2.1 (Medical Evaluation - Purpose) stated the medical evaluation element of the DES was to be documented under departmental regulations and show the medical status and duty limitations of service members who have been referred into the DES. b. Paragraph E3.P1.2.3 (Content) required the physical examinations to document the full clinical information of all medical conditions the service member had, and state whether each condition was the cause for referral into the DES. Clinical information included a medical history, appropriate physical examination, medical tests with results, medical and surgical consultations, diagnoses, treatment, and prognosis. MEBs shall not state a conclusion of unfitness because of physical disability, assignment of disability percentage rating, or the appropriate disposition under chapter 61, Title 10, U.S. Code. c. Paragraph E3.P1.3.1 (Physical Disability Evaluation – Purpose) stated the physical disability evaluation element of the DES was to determine the fitness of service members with medical impairments to perform their military duties; and for members determined unfit for duty-related impairments, their entitlement to benefits under chapter 61, Title 10, U.S. Code. Physical disability evaluation shall be conducted by PEBs. 2. AR 400-400 (Patient Administration), in effect at the time, implemented in chapter 7 (Military Personnel Physical Disability Processing) the policies and procedures for processing military personnel within the DES. a. Paragraph 7-7 (MEB Proceedings) stated MEBs operated informally and could assemble to discuss and evaluate a patient's case. Clinical, health, and other records, as appropriate, were reviewed. If deemed appropriate, the affected Soldier could appear in person. MEBs that were referring the case to a PEB were required to take special care in recording MEB proceedings to ensure clarity and completeness. The description of the Soldier's condition was to accurately state the limitations imposed by the impairments listed. If applicable, the entry should also include a discussion of the combined effect of all impairments. b. Upon completion of the MEB, and after approval of the proceedings, the Soldier was to be counseled as to the results. If the Soldier disagreed with the findings of the MEB, they had 3 working days to prepare a written appeal. If there were no objections, the MEB results were forwarded to the PEB. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army PDES and set forth policies, responsibilities, and procedures that governed the evaluation for physical fitness of Soldiers who might be unfit to perform their military duties because of physical disability. a. Chapter 3 stated the mere presence of impairment did not, of itself, justify a finding of unfitness because of physical disability. In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably could be expected to perform because of his or her office, rank, grade or rating. b. Chapter 4 addressed procedures for the PEB process, and included guidance on referring Soldiers for evaluation by an MEB, when a question arose as to the Soldier's ability to perform the duties of his or her office due to a physical disability. (1) Paragraph 4-13 (Referral to a PEB) stated the MEB would recommend referral to a PEB those Soldiers who did not meet medical retention standards. (2) Chapter 4, Section IV (Physical Disability Evaluation) outlined PEB procedures. Paragraph 4-19 (PEB Decisions - Common Criteria) stated the PEB had to decide the following: * was the Soldier physically fit or unfit to perform the duties of the Soldier's office, grade, rank, or rating? * was the disability permanent? * did the disability meet the criteria established by law for compensation? (3) Each case was first considered by an informal PEB. The PEB was to consider each case using the policies outlined in chapter 3 (Policies) and the criteria from paragraph 4-19. The results were recorded on a DA Form 199 and the Soldier made the following elections as to the results: * concur with the findings and recommendations, and waive a formal hearing * nonconcur with the findings and recommendations; submit a rebuttal, but waiving a formal hearing * demand a formal hearing with or without a personal appearance * choose whether or not to have counsel if a hearing is demanded (4) A Soldier was entitled to a formal hearing, if requested, after informal consideration by a PEB. At the formal hearing, the Soldier had the following rights: * the Soldier could testify as a witness under oath in his or her own behalf * the Soldier or counsel could introduce witnesses, depositions, documents, or other evidence, as well as cross-examine witnesses who had been examined by the PEB * the Soldier or counsel could make unsworn statement, either orally or in writing, without being subject to cross-examination * the Soldier could remain silent (5) During the formal hearing, the Soldier or counsel could object to any actions taken by the board. When an objection was made, it would be made a matter of record, and the president of the board would rule on objection. (6) Upon completing the open hearing, the board was closed for deliberations. Once deliberations were completed, the board reopened and the Soldier was advised of the findings and recommendations. When the Soldier had personally appeared before the board, the DA Form 199 was to be immediately prepared and the Soldier given a copy. (7) The PEB afforded the Soldier the opportunity to make an election at that time, but the Soldier could also choose to take the full time-period permitted for reaching a decision. Should the Soldier elect to rebut the formal PEB's results, the letter of rebuttal had to be received within 10 days from the Soldier's receipt of the formal PEB's results. The rebuttal could only be based on one or more of the following: * the decision of the PEB was based on fraud, collusion, or mistake of law * the Soldier did not receive a full and fair hearing * substantial new evidence exists, and is submitted to the PEB; this evidence that could not have been presented before the PEB made its decision (8) If consideration of the rebuttal did not result in a change to the findings and recommendations, the PEB advised the Soldier of this result in writing, and the rebuttal with the PEB's reply was forwarded to Army Total Personnel Command (PERSCOM) for inclusion in the case proceedings. c. Chapter 4, Section V (Review and Confirmation of PEB Action), paragraph 4-22 (Review by the Physical Disability Agency (PDA)0, stated a review by the PDA was required when the Soldier nonconcurred with the results of the formal PEB, submitted a statement of rebuttal, and the PEB did not make a change to its findings and recommendations. Upon review, the PDA could take the following actions: * concur with the findings and recommendations of the PEB, or make minor changes or corrections that do not affect the recommended disposition of the Soldier * return the case to the PEB for reconsideration, clarification, further investigation, a formal hearing, or other action when the case records show such action would be in the best interests of the Soldier or the Army * issue revised findings providing for a change in disposition of the Soldier, or change the Soldier's disability rating * refer the case to the Army Physical Disability Appeals Board d. Chapter 4, Section VI (Disposition Subsequent to Adjudication), paragraph 4-24 (Disposition by PERSCOM) stated PERSCOM would dispose of cases by publishing orders or issuing proper instructions to subordinate headquarters. In cases where the disability rating is less than 30 percent, the Soldier would be separated for physical disability with severance pay. 5. AR 40-501 (Standards of Medical Fitness) with an effective date of 30 August 1995 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. a. Chapter 3 (Medical Fitness Standards for Retention and Separation Including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service. b. Paragraph 3-10 (Hearing) states Soldiers incapable of performing duty with a hearing aid will be referred for MEB/PEB processing. (There is no specific mention of the condition of tinnitus.) c. Paragraph 3-16 (Vision) provides that hemianopsia (due to brain injury or stroke), of any type if bilateral, permanent and based on an organic defect may be reasons for referral to an MEB/PEB. If caused by a transitory condition, such as migraine, are not considered to fall below required standards. Thus no MEB/PEB was required. d. Paragraph 3-30 (Neurological disorders) lists the medical conditions that are causes for referral to an MEB. Among the medical conditions includes migraine, tension, or cluster headaches, when manifested by frequent incapacitating attacks; and alteration of consciousness, speech, personality, or mental function of such a degree as to significantly interfere with performance of duty. e. Paragraph 3-32 (Affective disorders (mood disorders)) such as depression provided for referral to an MEB if the symptoms were persistent or recurrence of symptoms sufficient to require extended or recurrent hospitalization, necessity for limitation of duty or duty in a protected environment or resulting in interference with effective military performance. f. Paragraph 3-39 (Spine, scapulae, ribs and sacroiliac joints) the medical conditions requiring referral to an MEB/PEB include congenital anomalies such as spondylolysis or spondylolisthesis with more than mild symptoms resulting in repeated outpatient visits or repeated hospitalizations or limitations affecting performance of duty. 6. AR 135-155 provides for officers who were selected for promotion to the next higher grade to voluntarily request a delay of promotion for an authorized period. The period of the delay may be extended in 1-year increments, to a maximum of 3 years from the on which that officer would otherwise be promoted for ARNG officers with the consent of the State adjutant general. At the expiration of the voluntary delay period, unit officers not promoted before the end of their maximum authorized voluntary delay period will be either transferred from the unit (to the U.S. Army Reserve Individual Ready Reserve) and promoted, or decline promotion and be considered to have failed selection for promotion (nonselect). Nonselection by a promotion board is administratively final. If law requires removal from the active status list, the officer must be removed within the prescribed time limits. 7. Title 10, U.S. Code, section 1372 (effective 4 January 1995), states unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the Temporary Disability Retired List under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: a.  The grade or rank in which he or she is serving on the date when his or her name is placed on the Temporary Disability Retired List or, if his or her name was not carried on that list, on the date when he or she is retired. b.  The highest temporary grade or rank in which he or she served satisfactorily, as determined by the Secretary of the Armed Force from which he or she is retired. c.  The permanent Regular or Reserve grade to which he or she would have been promoted had it not been for the physical disability for which he or she is retired and which was found to exist as a result of a physical examination. d.  The temporary grade to which he would have been promoted had it not been for the physical disability for which he or she is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination. DISCUSSION: 1. The available evidence shows the applicant underwent a medical examination that led to a finding of failing medical retention standards for his MOS due to a limiting profile of "3" for his lower extremities. He underwent an MEB which identified the following conditions: * Status post severe left knee injury with tibial plateau fracture, left ankle instability consistent with anterior talofibular ligament sprain and posterior cruciate ligament injury status post reconstruction with residual instability * Left ankle instability consistent with anterior talofibular ligament sprain * Post-concussion syndrome secondary to closed head trauma * History of mechanical low back pain * Moderate-to-severe high-frequency hearing loss * History of pes planus * PTSD * Chronic pain syndrome related to the leg injury 2. The MEB's role, by regulation, is to identify all medical conditions that may interfere with the Soldier's ability to perform military duties. Once the MEB determines all conditions that fail medical retention standards, those conditions, and only those conditions, are referred to the PEB for a fitness determination. 3. The PEB rating shows his combined disability rating of 40 percent with a recommendation for permanent disability retirement. a. VASRD Code 5257, left knee injury requiring surgical repairs with residuals of posterior cruciate instability requiring a protective brace for activities of daily living. The recommended disability percentage was 20 percent. b. VASRD Code 5262, left ankle instability due to attenuation of the anterior talofibular ligament while stable for activities of daily living it becomes unstable with minimal stress and is unfitting in a Special Forces officer. Rated as tibia-fibular impairment-slight with a recommended disability percentage of 10 percent. c. VASRD Code 8045 9304, post-concussion syndrome manifested as headaches and mild diminished performance on memory tasks, sustained during airborne operations, GAF 65. Rated as mild with a recommended disability percentage of 10 percent. d. All other conditions listed in the MEB proceedings were considered by the PEB and were not found unfitting meaning he met the retention standards as required in regulatory guidance. His records contain no hospitalizations for depression. His migraine headaches did not appear to interfere with the performance of his duties provided he used Tylenol or ibuprofen. There is no evidence his back condition and tinnitus interfered with or limited his ability to perform his duties. A review of his OER for the period 1 September 1995 through 31 August 1996 shows he had no medical condition or illness that interfered with his ability to perform his duties as none were mentioned. 5. By regulation, the PEB's mandate is to address only those medical conditions the MEB has determined as not meeting medical retention standards. In a medical advisory opinion there appears to be no evidence supporting counsel's contentions as the applicant was able to perform his duties except for participating in physical activity due to his leg condition. 6. Based upon the arguments and evidence presented by counsel, the Board can determine if additional medical conditions should be added to his MEB or PEB. To effect this change, the applicant's file would reenter the DES as no medical personnel are members of the Board. 7. With respect to his LTC/O-5 promotion and subsequent retirement in that grade, the evidence shows he was selected for promotion by a DA board with an effective date of 1 September 1995. As a member of the UTARNG, the applicant with regulatory authority declined promotion on 5 August 1995 agreeing to remain in the UTARNG for 3 years in the rank/grade of MAJ/O-4. The regulation further stated that an officer who reaches the end of the 3-year period will be considered as failing selection for promotion or nonselect. At the time of his permanent disability retirement, he held the rank of MAJ/O-4. The board needs to determine if the law and regulatory guidance will allow for his promotion to LTC/O-5. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018785 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018785 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2