BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20160000730 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ ___x_____ ___x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 July 2017 DOCKET NUMBER: AR20160000730 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding award of the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and Marksman Marksmanship Qualification Badge Hand Grenade Bar to his DD Form 214. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to his request for a medical retirement, award of the Southwest Asia Service Medal, and adding military education to his DD Form 214. ______________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: 13 July 2017 DOCKET NUMBER: AR20160000730 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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * he was medically retired instead of honorably discharged from active duty * all of his military education * award of the Southwest Asia Service Medal (SWASM) 2. The applicant states: a. He should have been medically retired instead of separated with a medical disability because he is still suffering from his illnesses. He served proudly as an infantryman. His ultimate desire was to leave a place of misfortune and violence in his hometown of Chicago, IL, and make his family, peers, and community proud as a retired Soldier. b. His career was cut short due to injuries he sustained at Fort Wainwright, AK, and Fort Bragg, NC. He was evaluated by doctors and found to be non-deployable because of his conditions. He wanted to be retained, but his chain of command felt there was no sense in him risking further injury. c. He has experienced a lot of problems with his health since he was discharged and he would like to be medically retired as a result. He believes this would take some stress and pressure off of him and his family and they would have a better life and good health care. d. His dream was shot down when he was told he could no longer serve in the Army. He has been depressed since that time. But he never spoke to anyone about this. He has trouble with his knees, legs, and back. He has worked through the pain over 20 years to keep his self-discipline and to survive and thrive for his family. e. He is still seen for his conditions at the Department of Veterans Affairs (VA) and receives outside help as well. His short time in the military was great, but he also experienced his mother's death and he had a friend who was shot down in Mogadishu. His conditions of severe frostbite, fibromyalgia, ankylosing spondylitis, sleep apnea, and hypertension have worsened through the years, and he had to quit his current job due to his health. He believes that due to his service-connected injuries and the fact that he was non deployable, he should have been medically retired. 3. The applicant provides: * Medical Records pages 32 to 216 * A DA Form 3349 (Physical Profile), dated 2 March 1993 * Medical Evaluation Board (MEB) Proceedings, dated 17 May 1993 * Swedish Covenant Hospital Medical Notes, dated 24 September 1999 * Joint Services Transcript, dated 29 January 2015 * A letter from the Public Safety Department, dated 27 May 2015 * VA Disability Rating, dated 18 June 2015 * a self-authored letter, dated 16 November 2015 * VA Form 21-0960L-2 (VA Sleep Apnea Disability Benefits Questionnaire) dated 20 January 2016 * VA Form 21-0960C-7 (VA Fibromyalgia Disability Benefits Questionnaire), dated 13 May 2016 * List of Medications from the Rehabilitation Institute of Chicago * VA Medical Records 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. On 16 February 1989, the applicant enlisted in the Regular Army. After initial entry training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). 3. The applicant provided his Joint Service Transcripts that show he received a recommendation for educational credit for completion of MOS 11B. He also received a recommendation for educational credit for his military experience in MOS 71L (Administrative Specialist). 4. The applicant's DA Form 2-1 (Personnel Qualification Record) shows in: a. item 5 (Oversea Service) – Alaska from 16 June 1989 through 15 June 1992; b. item 9 (Awards, Decorations and Campaigns): * Army Service Ribbon * Army Achievement Medal (2nd Award) * National Defense Service Medal * Army Good Conduct Medal * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Marksman Marksmanship Qualification Badge Hand Grenade Bar c. item 17 (Civilian Education and Military Schools) – Infantryman School, 13-weeks, completed – 1989; and d. item 35 (Record of Assignments) – no service in SWA. 5. The applicant provided: a. a DA Form 3349 (Physical Profile), dated 2 March 1993, that shows he received a permanent physical profile rating of "3" (P3) for "Cold Weather Injury (B [both) Hands"; b. medical documentation that shows he underwent an MEB on 17 May 1993, which indicates he experienced cold weather injuries in 1990 and 1991 during field training exercises. His index and middle fingers were at further risk of serious cold weather injury; therefore, he was no longer worldwide deployable and was referred to a physical evaluation board (PEB). c. his PEB Proceedings, dated 26 July 1993, which show that board found he was physically unfit due to "cooling of all digits with sore atrophy of pads of the index fingers and thumbs (codes 7199 and 7122). Delayed flow through both radial and ulnar arteries in each hand." The board recommended a combined disability rating of 10 percent and separation with severance pay, if otherwise qualified. In addition, the board found that his disability did result from a combat-related injury as defined in Title 26 U.S. Code 104. 6. On 1 November 1993, the applicant was honorably discharged from active duty. His DD Form 214 shows: * item 12c (Net Active Service this Period) – 04  08  16 * item 12f (Foreign Service) – 03  00  00 * item 23 (Type of Separation) – DISCHARGE * item 25 (Separation Authority) – ARMY REGULATION 635-40, PARAGRAPH 4-24B(3) * item 28 (Narrative Reason for Separation) – DISABILITY SEVERANCE PAY 7. The applicant also provided: a. a VA rating decision, dated 18 June 2015, which shows he was granted the following ratings for service-connected disabilities: * frostbite, left foot – 30 percent ( percent) * frostbite, right foot – 30 percent * frostbite, left hand – 20 percent * frostbite, right hand – 20 percent * frostbite, upper extremities – 10 percent * frostbite, lower extremities – 10 percent b. evidence showing the VA also rated the following conditions as not service connected, not secondary, or incurred by service: * arthritis of the bilateral upper and lower extremities associated with frostbite (upper extremities) * degenerative disc disease with low back pain * history of left knee and right knee sprain * chronic bilateral non-granulomatous anterior uveitis, associated with frostbite (upper extremities) * hypertension c. numerous medical documents detailing his medical history and treatment during his military service and post-service, to include: severe frostbite, fibromyalgia, ankylosing spondylitis, sleep apnea, hypertension, major depression and anxiety; d. medical documentation from the Swedish Covenant Hospital and the VA for (scoliosis, spine issues, ankylosing spondylitis, right and left knee pain, right posterior tibial tendon pain, chronic lower back pain, arthritis, and sciatic issues), Rehabilitation Institute of Chicago, a list of current medications, a VA claim for sleep apnea and fibromyalgia, and a Mental Health Intake Assessment that shows a psychiatric diagnosis of adjustment disorder with depressed mood vice mood disorder due to medical condition; and e. a letter from the manager of Public Safety, stating the applicant has resigned from the Public Safety Department due to health issues. 8. In the processing of this case, an advisory opinion was obtained on 9 January 2017 from the Army Review Boards Agency (ARBA) Medical Advisor/ Psychologist, which states: a. The applicant did not meet medical retention standards in accordance with Army Regulation 40-501(Standards of Medical Fitness), chapter 3, and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). b. "A review of the available documentation did find evidence of a mental-health considerations that are supportive of a change to medical retirement. If that change is justified, it will need to be based on his physical condition." 9. On 11 January 2017, the applicant was provided a copy of the advisory opinion with an opportunity to respond. He responded on 20 January 2017, stating he is in full agreement with the decision and it is his sincere hope that he can be granted a military retirement by this Board. 10. A revised advisory opinion was obtained from the ARBA Medical Advisor/ Psychologist on 18 May 2017, which now states: a. The applicant received an honorable discharge with disability severance pay under Army Regulation 635-40, paragraph 4-24b(3), as a result of frostbite he received while on a fire range at Fort Wainwright, AK. He now has a 90-percent service-connected disability rating from the VA per the Joint Legacy Viewer (JLV) as of 18 May 2017. b. He has continued to have pain from his injuries and also has sleep apnea documented in his record since his discharge. His JLV showed his VA medical issues, to include major depressive disorder recurrent, moderate as of 23 January 2017, and with adjustment disorder with mixed anxiety and depressive mood as of 25 January 2016. No references were in the JLV for the aforementioned disorders prior to 2016. c. The available record lacks evidence showing a disabling mental health condition at the time of the applicant's discharge. d. The applicant did not meet medical retention standards in accordance with Army Regulations 40-501, chapter 3, and the provisions set forth in Army Regulation 635-40 that was applicable to the applicant's era of service. e. The applicant's medical conditions were considered at the time of discharge and a review of the available documentation did not find evidence of mental health conditions that support a change to medical retirement. 11. On 19 May 2017, the applicant was provided a copy of the advisory opinion with an opportunity to respond. He did not respond. 12. In the processing of this case, an advisory opinion was obtained on 12 June 2017, from the ARBA Senior Medical Advisor. The medical advisory opinion states: a. An ARBA Psychologist submitted a medical advisory, dated 9 January 2017, which was later corrected/revised with a date of 18 May 2017. The new advisory opinion was amended to state, "A review of the available documentation did not find evidence of a mental health condition that supports a change to medical retirement." b. The applicant did not meet medical retention standards for history of frostbite with cold intolerance of the upper and lower extremities with cold intolerance in accordance to Army Regulation 40-501, chapter 3, and the provisions set for in Army Regulation 635-40 that were applicable to the applicant's era of service. c. The applicant met medical retention standards for mild scoliosis, visual acuity, dental class III, history of fainting, left tibial shin splints, grade I right ankle sprain, pilonidal sinus, knee pain, photophobia, shortness of breath, and other physical, medical and/or behavioral conditions in accordance with Army Regulation 40-501, chapter 3, and the provisions set forth in Army Regulation 635-40 that were applicable to the applicant's era of service. d. The applicant's medical conditions were duly considered during his medical separation processing. A review of the available documentation found no evidence of a medical disability or condition, which would support a change to his current reason for discharge. e. Currently, VA Schedule for Rating Disabilities (VASRD), code 7122, specifically applies to frostbite and other conditions caused by overexposure to the cold with a 10-percent rating given if there is only pain, numbness or sensitivity to the cold affected area. Before 2002, the skin ratings had room for interpretation and when they changed (in 2002 and again in 2008) they became more based on measurable facts instead of personal opinion. f. A 20-percent rating is given if there is joint pain, numbness or sensitivity to the cold in the area affected and one of the following: discoloration of the skin, abnormal nail growth, tissue loss, decreased ability to feel, hyperhidrosis, or other abnormalities proven by x-ray. A 30-percent rating is given if there is joint pain, numbness or sensitivity to the cold in the area affected and two or more of the following: Discoloration of the skin, abnormal nail growth, tissue loss, decreased ability to feel, hyperhidrosis, or other abnormalities proven by x-ray. 13. On 14 June 2017, the applicant was provided a copy of the advisory opinion with an opportunity to respond. He did not respond. 14. On 20 June 2017, the applicant submitted additional information through legal counsel addressing the following discrepancies in the advisory opinions: a. A letter, dated 20 June 2017, stated the VA incorrectly rated the applicant's injuries at the time of his disability rating in 1993. They neglected to evaluate the neuropathy that the applicant was experiencing at the time. This condition has since been evaluated by the VA and he has received a 30-percent rating for both feet and his left hand, and a 20-percent rating for his right hand. The condition of his extremities has not changed since he was separated from the military, indicating the original rating of 10 percent for cold injuries was incorrectly decided. b. The applicant had a combined disability rating of 20 percent immediately following separation from the military according to the VA rating decision, dated 2 November 1993. The advisory opinion incorrectly states he was rated at 10 percent immediately following separation. In addition, in 1998, he received a combined VA rating, which was increased to 40 percent for the same injuries. c. As noted in the advisory opinion, dated 12 June 2017, VASRD code 7122 is specifically applied to frostbite and other conditions caused by overexposure to the cold. Before 2002, the skin rating has room for interpretation and when those ratings were changed in 2008, they became based more on measurable facts instead of just personal opinion. He should not be subject to the old standard of review. If the standards we use today, would have been applied to this case, medical retirement would have been granted without question. These standards have become more objective for uniformity. They have not changed because cold weather injuries have presented themselves in different ways. The standards have changed because it is unfair to subject a veteran to the subjective nature of poorly written standards. This current claim for a discharge upgrade should be evaluated under those standards set forth in 2008. d. PEB Proceedings (1 page) for the board convened on 26 July 1993 show "cooling of all digits with some atrophy of pads of the index fingers and thumbs. Delayed flow through both radial and ulnar arteries in each hand." He was rated physically unfit with a disability rating of 10 percent and a recommendation for separation with severance pay, if otherwise qualified. e. A VA Disability Rating, dated 20 January 2017, shows the following disability conditions: * major depressive disorder, claimed as a mental disability – 30 percent (effective 3 November 2015) * residuals of cold injury to include small fiber neuropathy previously rated as frostbite, left hand – increased rating from 20 percent to 30 percent * residuals of cold injury to include small fiber neuropathy previously rated as frostbite, right hand – continued at 20 percent * residuals of cold injury to include small fiber neuropathy previously rated as frostbite, right foot – continued at 30 percent * residuals of cold injury to include small fiber neuropathy previously rated as frostbite, left foot – continued at 30 percent f. The following conditions were denied due to a lack of evidence that showed these conditions began in or were caused by military service: * history of right knee sprain/pain * degenerative disc disease with low back pain, now claimed as lumbar back pain and ankylosing spondylitis * history of left knee sprain/pain * hypertension * fibromyalgia * sleep apnea * cervical spine condition g. The applicant's history of VA combined disability ratings are as follows: * 20 percent – effective 2 November 1993 * 40 percent – effective 12 January 1998 * 80 percent – effective 18 June 2009 * 90 percent – effective 3 November 2015 15. A review of his records indicates entitlement to additional awards, which are not shown on his DD Form 214. REFERENCES: 1. Army Regulation 600-8-22, paragraph 2-14, provides that the SWASM was awarded to all members of the Armed Forces of the United States serving in Southwest Asia and contiguous waters or airspace there over on or after 2 August 1990 to a date to be determined. 2. Army Regulation 635-5 (Separation Documents) provides instructions for completing the DD Form 214. The version in effect at the time stated for item 14, list formal in-service (full-time attendance) training courses completed during the period of service covered by the DD Form 214. Courses were listed by title, length in weeks, month, and year completed. The information was intended to assist the Soldier after separation in job placement and counseling; therefore, training courses for combat skills were not listed. 3. Army Regulation 40-501, dated 15 May 1989, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty, despite impairment, would be considered presumptive evidence of physical fitness. 4. Army Regulation 635-40, dated 1 September 1990, establishes the Army Physical Disability Evaluation System (PDES). This regulation establishes the PDES according to the provisions of chapter of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18. 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. a. Paragraph 3-1c (Standards of Unfitness Because of Physical Disability) states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. In evaluating the Soldier's fitness to perform duties, all relevant evidence must be considered in evaluating the fitness of a Soldier. Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence. Thus, if the preponderance of evidence indicates unfitness, a finding to that effect will be made. b. Paragraph 3-5 (Use of the VASRD) states: (1) The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Under the provisions of Title 10, U.S. Code, chapter 61, these ratings are assigned from the VASRD. (2) Special guidance concerning Army use of the VASRD, as well as modifications and exceptions to it as prescribed by Department of Defense Directive 1332.18, are set forth in appendix B. (3) The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one, which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. c. Paragraph 4-24b(3) (Final Disposition) states that based upon the final decision of the Physical Disability Agency or the Army Physical Disability Appeal Board, the Army Personnel Command will issue retirement orders or other disposition instructions as separation for physical-disability with severance pay (Title 10, U.S. Code, section 1203). 5. Title 10, U.S. Code, chapter 61 (Retirement or Separation for Physical Disability), provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 6. Title 10, U.S. Code, section 1203 (Regulars and Members on Active Duty for More than 30 Days: Separation), provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated less than 30 percent. 7. Title 38, U.S. Code, section 1131 (Basic Entitlement), provides for disability resulting from personal injury suffered or a disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war. The United States will pay to any veteran who, as a result, is disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. DISCUSSION: 1. The applicant contends that his DD Form 214 should be corrected to show he was medically retired by reason of physical disability instead of showing he was discharged with entitlement to severance pay. Additionally, he requests the listing of all of his military education and the SWASM on his DD Form 214. 2. Army Regulation 600-8-22 states in order to be awarded the SWASM, an individual must be assigned to duty in a designated area in Southwest Asia during the period 2 August 1990 through 15 October 1995. The applicant served in an active duty status from 16 February 1989 to 1 November 1993; however, he did not serve in a designated Southwest Asia area. 3. The applicant provides documentation that shows he was recommended for military experience/education credit in MOS 71L; however, there is no documentation in his records showing he attended a formal military school for MOS 71L. 4. A DA Form 2-1 in the applicant's records shows he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and Marksman Marksmanship Qualification Badge Hand Grenade Bar. These badges are not listed on his DD Form 214. 5. The applicant's physical profile shows he had a "P3" rating for frostbite of both hands. His MEB, dated 17 May 1993, shows he was referred to a PEB for his frostbite due to cold weather injuries. It was also noted that he was not worldwide deployable due to his cold weather injuries. 6. The applicant provides medical documentation showing additional medical and mental health conditions; however, they were not listed on his physical profile, nor did he receive a MEB for any other condition other than frostbite. His MEB/PEB considered his frostbite since it was the only condition that was listed and/or rated as "P3." The MEB/PEB only considers medical conditions that are documented by a physical profile with a permanent rating of "P3." 7. Both medical advisory opinions from the ARBA Medical Advisor/Psychologist and Senior Medical Advisor confirm the applicant did not have any mental health conditions that were service connected; therefore, the opinions did not support a change to his request for medical retirement. Furthermore, the medical advisory opinions also note the applicant met medical retention standards for mild scoliosis, visual acuity, dental class III, a history of fainting, left tibial shin splints, grade I right ankle sprain, pilonidal sinus, knee pain, photophobia, shortness of breath, and other physical, medical and/or behavioral conditions in accordance with Army Regulation 40-501, chapter 3, and the provisions set forth in Army Regulation 635-40 that were applicable to the applicant's era of service. All of his medical conditions were duly considered during his medical separation processing. 8. The applicant, through counsel, provided a letter which contends that pursuant to the updated VASRD for frostbite in 2002 and in 2008, the applicant should be rated in accordance with the updated version, since it is based more on factual criteria than on mere opinion. 9. The applicant's medical separation action with severance pay was accomplished in compliance with applicable laws and regulations, as substantiated by the advisory opinions. 10. After reviewing all pertinent evidence and taking into consideration the medical advisory opinions, there does not appear to be evidence of an error or injustice in this case. The VA appears to have increased his disability rating post-separation. The VA evaluates a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. An increase in his VA ratings does not equate to an error by the Army as he suggests in his application. The Army determines fitness for duty, while the VA assesses one's civilian employability post-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) AR20160000730 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000730 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2