BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20150019040 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20150019040 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20150019040 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his records to show he was medically retired upon his release from active duty, by reason of physical disability, instead of being honorable discharged from the Army National Guard (ARNG) and subsequently reassigned to the U.S. Army Reserve (USAR) Control Group (Retired Reserve). 2. The applicant states, in effect, he was activated in support of Operation Enduring Freedom (OEF). He started having severe headaches and was placed on medical hold at Fort Knox, KY. He was allowed to retire from the ARNG at age 60; however, he should have been medical retired from active duty. 3. The applicant provides: * a two-page, hand-written statement * an extract of his Standard Form (SF) 93 (Report of Medical History), dated 6 May 1995 (first page only) * a medical document from Jackson Clinic, Physician Assistant, Jackson, TN, dated 2 December 1995 * an extract of his DD Form 2795 (Pre-Deployment Health Assessment (Pre-DHA)), dated 1 February 2003 (one page only) * an extract of his DD Form 2796 (Post-Deployment Health Assessment (PDHA)), undated (one page only) * a medical statement from a Dr. D____ M. L____, of Northside Medical Clinic, Primary Care, Jackson, TN, dated 14 February 2003 * DD Form 2795, dated 24 February 2003 * three medical documents, dated on or about 26 February 2003 * an Audiology Referral from Hearing Conservation Office, dated 1 April 2003 * a DA Form 4700 (Medical Record-Supplemental Medical Data – Record of Audiological Evaluation), dated 3 April 2003 * a Medical Evaluation Board – Addendum, from Ireland Army Community Hospital (IACH) Neurology, Fort Knox, KY, dated 18 April 2003 (two pages) * an extract of his SF 502 Automated (Clinical Record Narrative Summary) titled "Medical 40 Board," dated 25 April 2003 (page 1 of 2 only) * a DA Form 3349 (Physical Profile), dated 6 May 2003 * Orders 230-02, issued by U.S. Army Medical Department Activity (MEDDAC), Fort Knox, KY on 18 August 2003 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code (USC), section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was born on 24 September 1944. 3. Following service in the Tennessee Air National Guard and Tennessee Army National Guard (TNARNG), and after a break in service, the applicant reenlisted in the TNARNG on 18 December 1991. He was promoted to sergeant on 18 December 1997. 4. Orders 043-033 issued by the TNARNG on 12 February 2003 ordered the applicant to active duty as a member of his Reserve Component unit in support of OEF and ordered him to report to Fort Knox, KY, on 23 February 2003 for mobilization. 5. The applicant underwent a medical evaluation board (MEB) on 3 May 2003 at IACH, Fort Knox, KY. a. The MEB Narrative Summary (NARSUM), titled "Medical 40 Board" indicates his chief complaint was daily headaches with ringing in the ears. The MEB was directed by the training physician. The MEB was performed on an outpatient basis while he was assigned to the Medical Hold at IACH. (1) After consultations of neurology and ophthalmology, it was determined at best physiologic and that it was not significant. The patient states he is unable to perform his MOS and do any routine exercise. Geographic assignments must take into consideration that the Soldier is only deployable to areas where medical services are routinely available. (2) The diagnosis is chronic headaches and it does not look like injury is exacerbated or caused by military service. It is recommended that this Soldier be referred to the physical evaluation board (PEB) for further ajudication and he will require duty limitations per attached DA Form 3349. (3) A DA Form 3349, dated 6 May 2003 shows he was given a rating of "3" under the physical capacity "P" category and a "2" under the hearing and ears category. His limitations were his hearing must be protected by using earplugs and the applicant claimed noise triggers headaches and claims as well that jumping, stooping, and stretches hurt him. Additionally, he was given a code "F" that indicates he was given an assignment or deployment limitations for overseas areas where definitive medical care is not available. b. An addendum was attached from the IACH Neurology Clinic which stated the applicant has a history of chronic headaches with no history of head injury or infectious process. He has normal computed tomography and magnetic resonance imaging scans of the brain. It further noted probable tension headache with component of medication overuse from years of daily narcotic analgesic use. With his problems, he could be expected to make frequent use of sick call, miss work, and function less than optimally at virtually all duties, especially those requiring exertion. The recommendation by the neurology physician was the service member did not meet retention criteria and should be referred to a PEB. c. The MEB concluded he did not meet medical retention standards and referred him to a PEB based on the diagnosis of chronic daily headaches in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-30g. No other conditions were listed on the DA Form 3947 (MEB Proceedings). It further noted that diagnosis date of origin was 1998, was not incurred while entitled to base pay, did exist prior to service, and was not permanently aggravated by service. d. The MEB findings and recommendation were approved on 6 May 2003. e. The applicant agreed with the MEB findings and recommendation on 7 May 2003. He further indicated he did not desire to continue on active duty. 6. DA Form 199 (PEB Proceedings) shows an informal board convened at Fort Sam Houston, TX, on 9 May 2003. It considered the medical condition of "chronic daily tension headaches" and stated the following: a. Based on a review of the objective medical evidence of record, the findings of the PEB are the Soldier's medical and physical impairment prevents reasonable performance of duties required by grade and military specialty. b. There is compelling evidence to support a finding that the current condition existed prior to service (EPTS) and was not permanently aggravated by such service. c. There is compelling evidence to support a finding that the current condition is not the proximate result of performing duty, and there is not a causal relationship between his military duty and his present condition. d. Even though he was not entitled to disability separation benefits, as a Soldier who may have at least 20 qualifying years for Reserve retirement under the provisions of Title 10, USC, chapter 67, he may have the option of transfer to the Retired Reserve and receive retired pay at age 60. e. The voting membership of the PEB in this case included an officer of the Reserve Component. f. He was advised that a member of an armed force may not be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury that he or she has. 7. The PEB found him physically unfit and recommended his separation from the service without disability benefits. The applicant concurred with the findings and recommendation and waived a formal hearing of his case on 14 May 2003. The PEB findings and recommendation were approved for the Secretary of the Army on 16 May 2003. 8. Orders 230-02 issued by MEDDAC, Fort Knox, KY, on 18 August 2003 released the applicant from the Medical Holding Detachment, Fort Knox, effective 18 August 2003. These orders contain additional instructions that reference the applicant's transfer to the Retired Reserve pursuant to Title 10, USC, section 1209, with entitlement to apply for retirement upon reaching age 60. 9. Orders 239-0174 issued by Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, on 27 August 2003 released the applicant from active duty, not by reason of physical disability, and returned him to the control of the TNARNG effective 12 September 2003. 10. The applicant was honorably released from active duty on 12 September 2003 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 7 months and 3 days of net active service during this period. 11. Orders 009-241 issued by the TNARNG on 9 January 2004 honorably discharged the applicant from the ARNG and assigned him to the USAR Control Group (Retired Reserve) effective 1 January 2004 (later amended to 12 January 2004). 12. The applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the ARNG and was transferred to the USAR Control Group (Retired Reserve) effective 12 January 2004 after completing 27 years, 1 month, and 3 days of total service for pay. 13. Orders P08-486642 issued by USAR Personnel Command, St. Louis, MO, on 10 August 2004 retired him and placed him on the Army of the United States Retired List effective 24 September 2004 (this date that coincides with his 60th birthday). 14. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) Senior Medical Advisor on 15 September 2016 and amended on 31 May 2017 upon review of additional documentation, who opined: a. The applicant is petitioning for a medical retirement instead of the regular retirement. A review of the applicant's electronic medical record (Armed Forces Health Longitudinal Technology Application) revealed no encounters, laboratory, radiology or clinical notes. His personnel records were also reviewed as well as the evidence he provided in support of his application. b. A Standard Form 93 (page one only), dated 6 May 1995, shows the applicant on pain medication (opioid), reporting frequent or severe headaches, hearing loss, ear/nose/throat trouble, hay fever, stomach/liver/intestinal trouble, adverse reaction to drug [allergic to ibuprofen), and depression or excessive worry. c. A DD Form 2795, dated 1 February 2003, shows the applicant reported medical problem was multiple headaches during the work day and the provider referral for neurologic evaluation with service member disposition as not deployable. d. A letter from the applicant's family physician, dated 14 February 2003, noting long history of headaches, multiple medications, side effect of the opioid especially makes him drowsy (note: takes 4 times daily), and recommendation that he avoid driving, operating machinery or being engaged in other hazardous activities in which his full attention is required. e. A DD Form 2795, dated 24 February 2003, shows the applicant reported medical problems of daily headaches and bad nerves, and the provider referral for neurologic evaluation with a note to see neurology for chronic headaches. f. A neurology evaluation, dated 26 February 2003, with impression of chronic tension headaches (4-5 years of daily headaches) and questionable Horner syndrome on right. An ophthalmology note, dated 26 February 2003, with impression of physiological anisocoric (not Horner syndrome, right upper lid ptosis secondary to levator dehiscence, and presbyopia. An audiology report, dated 3 April 2003, noted mild to severe high-frequency sensory neural hearing loss, both ears, with assessment of borderline for needing hearing aids. g. According to the commander's statement, dated 9 March 2003, the applicant is physically incapable for reasonably performing his duties in military occupational specialty 88M (Vehicle Operator) due to his health problems. h. A DD Form 2807-1 (Report of Medical History), dated 1 April 2003, with multiple "yes" responses to medications including: hydrocodone (opioid pain medication), Depakote (anticonvulsant used for migraine prevention), anxiety medicine, and a sleep aid. The remarks block indicated recurring headaches and the applicant can't don a gas mask due to instant headaches. i. A DD Form 2808 (Report of Medical Examination), dated 1 April 2003, with clinical evaluation unremarkable and pending an audiology examination with a "3" in hearing. j. A DA Form 3947, dated 3 May 2003, was for chronic daily headaches with an approximate date of origin as 1998. It did not incur while entitled to bas pay and was determined to have EPTS and was not permanently aggravated by service. k. A DA Form 199, dated 9 May 2003 was evaluated for chronic daily tension headaches. Based on a review of the objective medical evidence of record, the findings of the PEB are the Soldier's medical and physical impairment prevents reasonable performance of duties required by grade and military specialty. There is compelling evidence to support a finding the current condition EPTS and was not permanently aggravated by such service. He was not entitled to disability separation benefits, but may have the option of transferring to the Retired Reserve and receive Reserve retired pay at age 60 if he has at least 20 qualifying years of service. His recommended disposition was separation from the service without disability benefits. l. A limited review of VA records through the JLV (Joint Legacy Viewer) noted 11 VA entered problem listed diagnoses from February 2011 to September 2013, including: chronic cluster headaches, hearing loss, anxiety, and low back pain. Those VA records also indicated his currently VA service-connected disability was rated at 0 percent. m. The applicant did not meet medical retention standards for EPTS chronic daily headaches in accordance with chapter 3, Army Regulation 40-501, and following the provision set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. n. The applicant met medical retention standards for physiological anisocoria, bilateral high-frequency sensory neural hearing loss ("H-2" profile), tinnitus, heartburn, right hydrocele, tender left epididymis, visual acuity, hyperlipidemia, and other behavioral, medical and/or physical conditions in accordance with chapter 3, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 that were applicable to the applicant's era of service. o. The applicant's medical conditions were duly considered during medical separation processing. p. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for the discharge in his case. 15. The applicant was provided a copy of the original advisory opinion on 9 September 2016 for review and possible rebuttal. He sent a typed response by fax on 14 October 2016 and opined, in effect, the following: * his hearing loss was caused by the firing of all sorts of weapons over several years and he served 27 years counting his Air National Guard and ARNG service * his life has been one hardship after another * not being able to work causes him to feel less of a man and not been able to care for his family * he has no money or the health or strength to maintain employment * he was let go from a job due to not being able to hear his supervisor and having too many headaches * he ended up filing for bankruptcy 16. The applicant was provided a copy of the revised advisory opinion on 31 May 2017 for review and possible rebuttal with a suspense date of 15 June 2017. He did not respond. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is what the Army did was correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Title 10, USC, section 1209, specifies that any member of the Armed Forces who has at least 20 years of service and who would be qualified for retirement but for the fact that his/her disability is less than 30 percent, may elect, instead of being separated, to be transferred to the inactive status to receive retired pay at age 60. 3. Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. a. Paragraph 3-3 (Conditions Existing Before Entering Active Service) states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they existed prior to military service. b. Paragraph 4-19 (PEB Decisions – Common Criteria) states in the following subparagraphs: (1) (Service Aggravation) that the PEB may decide that a Soldier's physical defect was EPTS, or incurred during inactive duty for training, or resulted from a non-service connected condition (not in the line of duty). If so, the board must further consider whether military service aggravated the unfitting defect. (2) (Conditions Not Aggravated by Service) that the PEB may decide that Soldiers who are unfit by reason of physical disability neither incurred nor aggravated during any period of service while entitled to basic pay, or as the proximate result of performing active duty or inactive duty training, but which effects duty performance, will be separated for physical disability without entitlement to benefits. Reserve Component Soldiers may request transfer to the Retired Reserve if eligible. DISCUSSION: 1. The applicant's request for correction of his records to show he was medically retired upon his release from active duty in lieu of being honorably discharged from the ARNG and subsequently transferred to the Retired Reserve was carefully considered. 2. The applicant contends, as a result of his activation in support of OEF, he should be qualified for an active duty medical retirement since he was placed on medical hold as a result of his medical condition of severe headaches. 3. The evidence of record shows that during his medical screening process in preparation of deployment, he complained of severe headaches. As a result, he was thoroughly evaluated and underwent an MEB on 3 May 2003 that determined his diagnosis of chronic headaches which was not exacerbated or caused by military service recommended him to a PEB. 4. The PEB determined his medical condition prevented him from reasonably performing his duties required of his grade and specialty; however, found his condition was EPTS and not permanently aggravated by such service. The PEB found him unfit and recommended that he be separated from the service without disability benefits. The PEB further noted that if the applicant had at least 20 years of qualifying service for Reserve retirement, he could opt to transfer to the Retired Reserve and received Reserve retired pay at age 60. The applicant concurred with the findings and recommendation on 14 May 2003 and the findings were approved by the Secretary of the Army on 16 May 2003. 5. Governing regulation and laws in effect state the PEB may decide that Soldiers who are unfit by reason of physical disability neither incurred nor aggravated during any period of service while entitled to basic pay, or as the proximate result of performing active duty or inactive duty training, but which effects duty performance, will be separated for physical disability without entitlement to benefits. Reserve Component Soldiers may request transfer to the Retired Reserve, if eligible. 6. The applicant was honorably discharged and transferred to the Retired Reserve and subsequently placed on the Retired List on 24 September 2004, his 60th birthday. 7. The advisory opinion confirmed his medical condition and reviewed all available documentation and found no evidence of a medical disability or condition that would support a change in his reason for separation. 8. Both his active duty and Reserve separations appear to have been conducted in accordance with governing law and regulations at that time. In view of the circumstances and absent any compelling evidence to the contrary, there appears to be no error or injustice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150019040 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019040 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2