BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160000905 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: 14 November 2017 DOCKET NUMBER: AR20160000905 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: 14 November 2017 DOCKET NUMBER: AR20160000905 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 enrolled in the Army Wounded Warrior (AW2) Program. 2. The applicant states he should have been afforded the opportunity to be a part of the AW2 Program after his retention board in 2008, or prior to being put on the Temporary Disability Retired List (TDRL) in June 2010. Numerous times he requested that he be allowed to continue in an active duty status or in the U.S. Army Reserve (USAR). He was never informed about the AW2 Program. 3. The applicant provides copies of: * Department of Veterans Affairs (VA) Rating Decision, dated 25 March 2010 (one page) * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 11 May 2010 with Physical Disability Evaluation System (PDES) Pilot Program Election page * TDRL Memorandum, from the U.S. Army Physical Disability Agency (USAPDA), dated 13 May 2010 * Two Army National Guard (ARNG) Retirement Points History Statements, dated in 2010 * NGB Form 22 (Report of Separation and Record of Service), dated 17 June 2010 * DA Form 199 (Informal PEB), dated 12 February 2014 * Memorandum from the U.S. Army PEB, dated 15 December 2014, recommending the applicant’s removal from the TDRL * Orders, dated 29 December 2014, removing the applicant from the TDRL and placing him on the Permanent Disability Retired List (PDRL) * DD Form 2860 (Claim for Combat-Related Special Compensation (CRSC)) and response * Email dated, 15 December 2016 COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: The applicant listed counsel; however, counsel's letter states they represented the applicant regarding his claim with the VA. Counsel provides no comments or contentions regarding his Army Board for Correction of Military Records (ABCMR) application. CONSIDERATION OF EVIDENCE: 1. The applicant, with prior ARNG enlisted service, was commissioned an ARNG second lieutenant effective 31 May 1997. 2. He was called to active duty in support of Operation Iraqi Freedom on 1 March 2005. 3. On 3 December 2005, the vehicle the applicant was riding in was hit by an improvised explosive device (IED). He experienced a cerebral concussion and neck strain. He was in the Reserve Component Medical Holdover Medical Retention Processing Program from 29 June through 29 July 2006. 4. His DD Form 214 shows he was honorably released from active duty on 29 July 2006 and returned to his ARNG unit. He served in Kuwait/Iraq from 26 June 2005 through 17 June 2006 and he completed 1 year, 4 months, and 29 days of active service. 5. On 22 June 2006, he was given a temporary profile, due to headache and neck pain. 6. On 30 July 2006, the applicant was awarded a VA disability rating for PTSD and residuals of head injury with headaches. 7. On 12 October 2007, he elected to keep his training pay in lieu of his VA benefits for 98 days in 2007. 8. In his email the applicant indicates he went before a Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) due to failing a pre-deployment screening in 2008. 9. Effective 28 August 2009, the VA added the diagnosis of traumatic brain injury (TBI) to the applicant's disabilities with a 70 percent rating and increased his PTSD rating from 30 to 50 percent. 10. A PEB, dated 12 April 2010, found the applicant unfit for duty and recommended that he be placed on the TDRL with a combined rating of 90 percent as follows: a. 70 percent for TBI referred to as a cognitive disorder, status post TBI. Condition is stable for rating. b. 50 percent for PTSD, previously evaluated as PTSD with cognitive disorder and depressive disorder. Condition was unfitting, but may yet respond to treatment and was not stable for rating. c. 10 percent for cervical strain with disc herniation and history of chipped vertebra and bulging discs. PEB referred to as herniated cervical disc with mild spinal stenosis causing neck pain with associated cervicogenic headaches. Condition is stable for rating. d. Medical Evaluation Board (MEB) diagnoses (Dx) 4 and 6 do not show the commander indicated they was hindering the Soldier's performance, and the case file contains no evidence that these diagnoses independently, or combined, rendered the Soldier unfit for his assigned duties. e. MEB Dx 5 meets medical retention standards, is not Listed on the Physical Profile as limiting the Soldier's functional activities, it is not commented upon by the commander as hindering the Soldier's performance, and the case file contains no evidence that this dx independently, or combined, render, the Soldier unfit for his assigned duties. 11. On 11 May 2010, the USAPDA concurred with the PEB findings and recommendations and directed the applicant be placed on the TDRL effective 1 July 2010. 12. The 12 December 2014 an informal PEB found the applicant to be physically unfit and recommended a rating of 90% with placement on PDRL. The applicant concurred with the informal PEB and waived his right to a formal hearing. He was rated as follows: * 70 percent for a cognitive disorder status post TBI (unfitting) * 50 percent for PTSD (unfitting) * 10 percent for herniated cervical disc with mild spinal stenosis causing neck pain with associated cervicogenic headaches (unfitting) * chronic C-5 compression fracture, mild (MEB Dx 4); degenerative disc disease, lumbar spine with subjective intermittent right lower extremity radiculopathy (MEB Dx 5); Subjective tinnitus (MEB Dx 6) are not ratable since they were not considered as unfitting conditions on the original PEB 13. On 15 December 2014, the U.S. Army PEB notified the applicant he was being removed from the TDRL and placed on PDRL. The applicant was also notified the PEB findings would be reviewed by the USAPDA for final approval and disposition of his case. 14. On 29 December 2014, the USAPDA notified the applicant he was being removed from the TDRL, effective 29 December 2014, due to permanent physical disability and permanently retired in the rank of captain with a 90 percent disability rating. His disability was determined to be based on an injury or disease received in line of duty as a direct result of armed conflict or caused by an instrumentality of war as defined by law and as a result of a combat related injury as defined in Title 26 United States Code, section 104. 15. An advisory opinion was obtained from the Army Review Boards Agency Senior Medical Advisor. The medical advisor opined the 2010 and 2014 PEBs properly evaluated the applicant's conditions and medical separation. The question of AW2 participation was deferred to the Board. 16. A copy of the advisory opinion was referred to the applicant. He did not respond to the opinion. REFERENCES: 1. The Warrior Transition Command (WTC) Army Benefits website provides the following: a. The AW2 Program established in 2004 as a part of the Comprehensive Transition Policy (CTP),assists severely wounded, ill and injured Soldiers, veterans and their families throughout their recovery and transition. The AW2 Program strives to foster the Soldier’s independence, through the local support of an AW2 Advocate. Soldiers who qualify for the AW2 Program are assigned to the program as soon as possible after arriving at the WTU. The AW2 supports Soldiers and their families throughout their recovery and transition, even into veteran status. Through the local support of AW2 advocates, AW2 strives to foster the Soldier's independence. b. In order for Army active duty Soldiers to be considered for entry into the AW2 program, the Soldier must have sustained wounds, illness, or injuries incurred in line of duty after 10 September 2001 and received or is expected to receive at least a 30% Army disability rating from the Integrated Disability Evaluation System (IDES) for one of the following conditions: * Blindness or severe loss of vision * Loss of limb * Hearing loss or deafness * Burns or permanent disfigurement * Paralysis/Spinal cord injury * TBI * Fatal or incurable disease with limited life expectancy 1 year or less, or * Receive a 30% IDES (Army) Disability rating for any other combat related condition, or any condition caused by an instrumentality of war (Including PTSD and other Behavioral Health conditions), or * Receive a combined 50% IDES (Army) Disability rating for any other combat related conditions caused by an instrumentality of war 2. Department of the Army WTC Policy Memorandum 14-02, subject: CTP, sets forth the goals and policy for the WTC. It provides the following: a. To support each wounded, ill and injured Soldier's return to the force or transition to veteran status, the Army created a systematic framework called the CTP. The CTP is a dynamic, living plan of action that focuses on the Soldier’s future. It uses six domains: Career, physical, emotional, social, family, and spiritual to establish goals that map a Soldier’s transition plan. As the owner of the CTP, each Soldier is empowered to take charge of their own transition and is accountable for developing and achieving their goals while complying with all their medical and military responsibilities. The CTP enables each Soldier to complete a successful transition to their desired goal while in the WTU or Community Care Unit (CCU). b. There are two tracks Soldiers follow during their transition: (1) Remain in the Army Track: for all Soldiers who will continue military service, including: (a) Return to Duty (RTD): This includes Active Component Soldiers and Reserve Component Soldiers on Active Guard Reserve (AGR) status who meet retention standards and upon exiting the WTU/CCU, return to a position in an active duty unit. Soldiers who have been processed through the PDES and are found Fit for Duty may also RTD. (b) Release from Active Duty: This includes National Guard (Compo 2) and US Army Reserve (Compo 3) Soldiers attached to the WTU/CCU who meet Army retention standards and are released from active duty to continue duty in the ARNG or Army Reserve in their current or alternate MOS. (c) MOS Administrative Retention Review (MAR2): This includes National Guard and USAR Soldiers attached to the WTU/CCU who meet Army retention standards and are released from active duty to continue duty in the ARNG or Army Reserve in their current or alternate MOS. (d) Continuation on Active Duty or Continuation on Active Reserve: Soldiers found not fit for duty may apply to remain in the Army in accordance with Army Regulation 635-40, paragraph 6-7. They must be found unfit, and their medical status cannot be harmful to the Soldier’s health or to the best interest of the Soldier or the Army, and they must be physically capable to perform useful duty in a qualified MOS. PEB Liaison Officers must forward all requests submitted to the USAPDA for a decision. (2) Transition from the Army Track: This includes all Soldiers who are not expected to continue military service in either an active or reserve status, including: (a) Medical Separation: When a Soldier is found to be unfit for duty, they may either medically retire or separate from the Army. This process begins when a Soldier’s primary care manager, in consultation with the appropriate specialty personnel, is able to make a determination whether further medical treatments are likely to return the Soldier to a fit-for-duty status. This point in time is referred to as the Medical Retention Decision Point (MRDP). This is a medically based event, and only a medical provider can declare that it has been reached. If, at MRDP, the Soldier is deemed not likely to return to a fit status, then they are given a permanent 3 or 4 profile, as medically appropriate. Following this, the Soldier is referred to the IDES process, which determines the Soldier’s fitness level and arranges for a seamless transfer of care and benefits to the VA. (b) Non-Medical Separation: This may occur when an ineligible Soldier elects to accept a traditional non-medical retirement after 20 or more years of service, when the Soldier reaches expiration term of service, or is subject to administrative, disciplinary or legal separation through Chapter or Uniform Code of Military Justice. c. The six processes of the CTP are: (1) In-processing: Immediately upon entry into a WTU or a later transfer into a CCU, the Soldiers complete in-processing, which includes administrative actions, orientation and risk assessments. At this point, the WTU Cadre outline the CTP process for Soldiers so they understand their roles and responsibilities during their time in the WTU. In-processing allows Soldiers to integrate smoothly into their WTU/CCU and helps to initiate the CTP. (2) Goal Setting: The goal setting process guides the Soldier and their family in the development of short-term goals that support their overarching transition/outcome goal. Goal setting is made up of two phases. (a) Phase I is completed within 21 days and facilitated by an Occupational Therapist (OT) or Certified Occupational Therapy Assistant. It helps WTU Soldiers create a foundation of functional and occupational goals that are reviewed during the initial scrimmage on day 30. (b) Phase II is facilitated after the initial scrimmage between days 31-90 by Comprehensive Soldier and Family Fitness (CSF2) Master Resilience Trainers/Performance Experts (MRT-PEs). Phase II allows Soldiers to expand their knowledge of the goal setting process, while providing the opportunity to set longer term goals. Sub-goals will also be developed to address priority areas that support the Soldier's career, physical, emotional, social, and spiritual domains, and that facilitate successful achievement of their overarching transition/outcome goal. (3) Transition Review: The transition review process provides the commander and interdisciplinary team (including social workers, physical therapists, occupational therapists, and AW2 Advocates, among others) an opportunity to review the Soldier's goals and progress with a focus on identifying and resolving issues that may impede goal attainment. Soldiers take ownership of their plan to maximize the resources available in the WTU. The different elements of review (self-assessment, CTP scrimmage and focused transition review) must all work in concert to facilitate a successful transition. (4) Rehabilitation: The rehabilitation phase begins as early as possible, including during in-patient status immediately following injury and provides appropriate clinical and non-clinical interventions such as vocational rehabilitation, education and adaptive reconditioning to support the Soldier's transition goals. Additionally, Soldiers actively work to accomplish self-identified transition goals as outlined in their CTP. During this phase, Soldiers complete periodic self-assessments that address the following areas of a holistic recovery: * Spiritual: beliefs, principles, values * Career: education, employment, work plan * Emotional: behavioral health, well-being * Family: family, financial, housing * Physical: activities of daily living, health care, medication, pain, physical fitness, weight control * Social: relationships (5) Reintegration: The reintegration process is to specifically prepare each Soldier and their family for a successful transition back to the force or to civilian life as a veteran. The process begins as soon as a Soldier is ready to begin reintegration tasks, but no later than the MRDP, and continues throughout the Soldier’s tenure in the WTU. The transition readiness checklist is executed 180 days before the anticipated discharge or at MRDP with the initiation of the MEB/PEB process, whichever comes first. The reintegration process culminates with the Soldier's completed transition from the WTU. (6) Post-Transition: The period after a Soldier exits the WTU/CCU is considered post-transition. The Soldier will out-process through the WCT Headquarters and Headquarters Company, and the squad leader and the nurse case manager will ensure the Soldier and family have the pertinent information for referrals to appropriate resources. At that time, the Soldier's gaining unit, the VA or the AW2 Program will oversee their care. DISCUSSION: 1. The applicant was injured in an IED blast on 3 December 2005. He was released from active duty and returned to his ARNG unit on 29 July 2006. The VA granted him disability benefits for the wounds sustained from the IED effective 30 July 2006. After failing a pre-deployment screening in 2008, he went before an MMRB with referral to the PDES for an MEB/PEB. The PEB/PDA placed him on the TDRL on 1 July 2010. He was permanently retired due to physical disability on 29 December 2014. He has been followed medically by the VA since 2006, well before the medical separation process. 2. The available evidence shows when it was determined the applicant had an unfitting medical condition he was properly processed for medical separation. He was placed on the TDRL for 4 years to determine if his conditions would improve or deteriorate. 3. Once the finding of unfitness was made by the PEB, and the applicant concurred with the PEB determination, he was placed on the TDRL. Once placed on the TDRL he could no longer be considered for retention on active duty or for continuation in the active ARNG or USAR. 4. The AW2 Program is to help a Soldier to transition from the military to civilian life following serious injury. In order to participate in this program the Soldier must not have been found unfit for retention. 5. Soldiers who are found unfit for continuation in the military are processed for medical discharge or medical retirement which occurred in the applicant's case. Since the applicant has already transitioned out of the military there are no provisions for placing him in the AW2 Program. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000905 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000905 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2