BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160001103 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: 19 September 2017 DOCKET NUMBER: AR20160001103 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: 19 September 2017 DOCKET NUMBER: AR20160001103 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of her records to show she was medically retired from the U.S. Army Reserve. 2. The applicant states: a. She was wrongfully disqualified for retention in the U.S. Army Reserve instead of being medically retired. She should be given retroactive retirement and compensation since she has been physically and emotionally unable to work due to service-connected disabilities. b. She should have been medically retired and not medically disqualified for retention because her disabilities were incurred while serving on active duty. She should have been medically retired since she had over 20 "good" years of service and her disabilities rendered her disabled to continue military service. 3. The applicant provides: * Notification of Eligibility for Retired Pay at Age 60 (20-year letter) * notification for medical evaluation board (MEB) * reassignment orders, dated 10 March 2008 * Department of Veterans Affairs (VA) Rating Decision, dated 4 December 2015 * medical records * three compact discs (CD) containing 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. Having prior active service in the Regular Army from 25 April 1979 to 15 September 1992, the applicant enlisted in the U.S. Army Reserve on 12 April 1997. She was promoted to staff sergeant effective 29 March 1999. 3. On 28 May 2003, she was issued her Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 4. She provided a memorandum from the Command Surgeon, U.S. Army Reserve Medical Command, dated 18 August 2006, stating she must be further evaluated by an MEB based on a recent review of her available medical records and most recent physical profile rating. 5. Item 74a (Examinee/Applicant) of her DD Form 2808 (Report of Medical Examination), dated 20 February 2007, shows she was qualified for service pending review by the command authority. 6. Her records contain a medical record, dated 2 August 2007, stating she does not meet medical retention standards and she is currently in the process of a non-duty related physical evaluation board (PEB) for post-traumatic stress disorder (PTSD), polycystic renal disease with hematuria, elevated creatinine, blood pressure elevation diastolic in the 90s, polycystic liver, and normal liver function tests with a physical profile rating of "322113." 7. Her DA Form 3349 (Physical Profile), dated 2 August 2007, shows she was assigned a permanent physical profile rating of: * "3" under the physical capacity or stamina factor * "2" under the upper extremities factor * "2" under the lower extremities factor * "3" under the psychiatric factor 8. Her available records do not contain MEB or non-duty related PEB proceedings. 9. Headquarters, U.S. Army Reserve Medical Command, Orders 08-070-00044, dated 10 March 2008, assigned her to the Retired Reserve effective 9 April 2008 for being medically disqualified, not as a result of her own misconduct. 9. She provided a letter from the VA, dated 14 October 2014, showing she was granted service connection for the following conditions with an overall or combined rating of 70 percent: * asthmatic bronchitis – 30 percent * PTSD – 30 percent * right knee chondromalacia – 10 percent * left knee chondromalacia – 10 percent * hypothyroidism – 10 percent * right wrist chondromalacia – 10 percent * left wrist chondromalacia (formerly evaluated as left wrist condition) – 0 percent * residual sinusitis from broken nose – 0 percent 10. She provided a VA Rating Decision, dated 4 December 2015, showing she was granted service connection for the following conditions: * anterior trunk nonlinear scars due to multiple bilateral breast surgeries – 0 percent * anterior trunk nonlinear scars due to multiple bilateral breast surgeries – 0 percent 11. The VA Rating Decision, dated 4 December 2015, also specified changes in her evaluation of: a. anterior trunk painful scar due to multiple bilateral breast surgeries, which was previously rated 0-percent disabling, was increased to 10 percent effective 13 November 2015; and b. recurrent bilateral breast cancer with bilateral mastectomies, which was previously rated 100-percent disabling, was proposed to be decreased to 50 percent for the left breast and 40 percent for the right breast. 12. An advisory opinion was rendered by the Army Review Boards Agency Senior Medical Advisor, dated 24 March 2017, wherein he stated: a. The applicant provided a CD of VA medical records with 699 pages of notes from 2012 through 2015. She provided two CDs containing magnetic resonance imaging (MRI) of the cervical spine, dated 21 July 2016, and MRI of the lumbar spine, dated 22 July 2016. b. The available records reasonably support PTSD existed at the time of the applicant's military service. c. The applicant did not meet medical retention standards for PTSD and polycystic renal disease with hematuria, elevated creatinine, and blood pressure elevation diastolic in the 90s. d. The applicant's medical conditions were duly considered during medical separation processing. e. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 13. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. She responded and stated: a. Title 10, U.S. Code, section 1204 (Members on Active Duty for 30 Days or Less or on Inactive Duty Training: Retirement), states upon a determination by the Secretary concerned that a member of the Armed Forces not covered by section 1201 or 1203 of this title is unfit to perform the duties of his or her office, grade, rank, or rating because of physical disability, the Secretary may retire the member with retired pay covered under section 1401 of this title if the Secretary also determines that: (1) based upon accepted medical principles, the disability is of a permanent nature and stable; (2) the disability is a result of an injury, illness, or disease incurred or aggravated in the line of duty after 23 September 1996 while performing active duty or inactive duty training; (3) the disability is not the result of the member's intentional misconduct or willful neglect and was not incurred during a period of unauthorized absence; and (4) the member has at least 20 years of service computed under section 1208 or the disability is at least 30 percent under the standard schedule of rating disabilities in use by the VA at the time of the determination. b. All of the above-mentioned is applicable in her case. c. She contends a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty), 20-year letter, and summary of her retirement points were provided. She enlisted in the Army at age 17. She gave her youth, life, and health. d. She underwent an MEB at Fort Gordon, Georgia. e. A line-of-duty determination was rendered since the injuries were the result of a brutal assault by another Soldier who was court-martialed and found guilty of the charges. This Soldier later killed a man with his bare hands. Military police reports were filed and available, as well as the court-martial documents, witness statements, and numerous hospital and clinical records. All of this happened at Fort Polk, LA, while serving on active duty for training under combat simulation conditions. f. The functional capability certificate, dated 12 January 2007, was obviously incomplete because the report of medical history, dated 20 February 2007, shows the hospital prescribed medication and the disabilities provided all required information. g. After an MRI evaluation, the report shows her low back pain was due to a herniated disc for which she underwent lumbar surgery fusion and instrumentation for fixation. The MRI results also demonstrated that her neck, shoulder pain and stiffness bilaterally was due to a herniated disc at cervical level for which she also had surgery to repair the damage. h. After extensive evaluation and genetic testing, the analysis demonstrated the hematuria due to proliferative kidney disease was not proliferative kidney disease, but renal disease incurred or aggravated by military service (possible exposure to parasites of sheep or bovine while serving on active duty in Germany). i. Hypothyroidism is service related during her active duty years due to possible exposure to radioactive material (disposal of radioactive waste). She underwent partial gastrectomy (surgical removal of the stomach) due to gastroesophageal reflux disease. She has been undergoing treatment for chronic PTSD since the assault. j. The comment "does not meet medical retention standards" in her medical record, dated August 2007, is wrong because it was duty related (in the line of duty). As a result, she was wrongfully medically disqualified for retention and discharged on 9 April 2008. The error was in considering her disabilities and injuries as non-service related when they were incurred while serving on active duty. Due to her disabilities (PTSD and renal disease), she did not meet retention and deployment standards. Her disabilities are service connected. She should have been given a medical retirement. She never received out-processing counseling, a certificate of retirement, or a DD Form 214 for her service in the U.S. Army Reserve. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement. a. Paragraph 3-3 (Disposition) provides that U.S. Army Reserve Soldiers not on active duty whose medical condition was not incurred or aggravated during an active duty period will be processed in accordance with chapter 9. b. Chapter 7 (Physical Profiling) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted. (1) Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): * P – physical capacity or stamina * U – upper extremities * L – lower extremities * H – hearing and ears * E – eyes * S – psychiatric (2) A physical profile rating of "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. A physical profile rating of "2" under any or all factors indicates an individual possesses some medical condition or physical defect which may require some activity limitations. A physical profile rating containing one or more numerical designations of "3" signifies the individual has one or more medical conditions or physical defects which may require significant limitations. The individual should receive assignments commensurate with his or her physical capability for military duty. c. Paragraph 9-12 (Request for PEB Evaluation) states Reserve Component (RC) Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness. Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required and cases are not sent through the PEB Liaison Officers at the medical treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the Regional Support Command or the U.S. Army Human Resources Command Surgeon's Office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability incurred while entitled to basic pay. a. It 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. Under the laws governing the Physical Disability Evaluation System, 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. 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. b. Paragraph 4-34 (RC Non-Duty Related Process) states the RC non-duty related process is established by policy. It affords RC Soldiers not on call to active duty of more than 30 days and who are pending separation by the RC for non-duty related medical conditions to enter the Disability Evaluation System for a determination of fitness and whether the condition is duty related. Referral to the RC non-duty related process is upon the request of the RC Soldier. If the Solder does not request referral, the Soldier is subject to separation for medical disqualification under RC regulations. c. Non-duty related impairment is defined as impairment of members of the RC that were neither incurred nor aggravated while the member was performing duty, to include no incident of manifestation while performing duty which raises the question of aggravation. Soldiers with non-duty related impairment are referred to the PEB for solely a fitness determination, but not a determination of eligibility for disability benefits. 3. Army Regulation 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers) prescribes policies, responsibilities, and procedures to assign, attach, detail, remove, or transfer U.S. Army Reserve Soldiers. Assignment to the Retired Reserve is voluntary. Eligible Soldiers may request transfer if they are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed. 4. Title 10, U.S. Code, chapter 61, 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 disability incurred while entitled to basic pay. 5. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition that was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 6. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparation of the DD Form 214 and stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. A DD Form 214 will be prepared for members of the USAR after completing 90 days or more of continuous active duty for training and/or after completing inactive duty training which resulted in the award of a military occupational specialty, even though the active duty was less than 90 days. This includes completion of advanced individual training under the USAR Split Training Program. 7. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, prescribes policy and procedural guidance relating to transition management. a. Paragraph 2-3 (USAR Soldiers Not on Active Duty) states retiring Soldiers attend a pre-retirement briefing in accordance with Army Regulation 600-8-7 (Retirement Services Program), chapter 3. The USAR produces separation orders for all USAR Soldiers not on active duty in accordance with Army Regulation 600-8-105 (Military Orders), chapter 9. Soldiers separating from an inactive duty status do not receive a DD Form 214. However, RC Soldiers separating from an inactive duty status will receive the appropriate certificate(s) as discussed in chapter 9. b. Paragraph 9-1 states activities listed in chapter 1 as authorized to prepare separation documents, will issue the certificate of retirement to all retiring Soldiers. For RC Soldiers, the certificate of retirement will be furnished to the Soldier at the time of transfer to the Retired Reserve. 8. Army Regulation 600-8-7 provides that RC Soldiers will receive a pre-retirement briefing, including an RC Survivor Benefit Plan briefing, between 18 and 20 years of service and a mandatory RC Survivor Benefit Plan briefing within 60 days of receipt of the Notification of Eligibility for Retired Pay (20-year letter). DISCUSSION: 1. The applicant contends she incurred her disabilities and injuries while serving on active duty and she should have been medically retired instead of being medically disqualified for retention in the USAR. 2. The evidence of record shows she was assigned permanent physical profile ratings of "3" under the physical capacity or stamina factor and psychiatric factor. 3. A physical profile rating containing one or more numerical designations of "3" signifies the individual has one or more medical conditions or physical defects which may require significant limitations. 4. The evidence of record also shows she did not meet medical retention standards and she underwent a non-duty related PEB. The medical advisory official determined the applicant's medical conditions were duly considered during medical separation processing. 5. She was reassigned to the Retired Reserve effective 9 April 2008 because she was medically disqualified for retention. She is eligible for retired pay upon application at age 60. 6. She was granted an overall or combined disability rating of 70 percent by the VA in 2014. The rating action by the VA does not demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. 7. In her response to the advisory opinion, she contends she never received out-processing counseling, a certificate of retirement, or a DD Form 214. 8. Army Regulation 600-8-7 provides that RC Soldiers will receive a pre-retirement briefing between 18 and 20 years of service and a mandatory RC Survivor Benefit Plan briefing within 60 days of receipt of the Notification of Eligibility for Retired Pay (20-year letter). She was issued her 20-year letter on 28 May 2003 and she was transferred to the Retired Reserve effective 9 April 2008, nearly 5 years later. In the absence of evidence to the contrary, administrative regularity must be presumed. 9. Army Regulation 635-8 provides that the certificate of retirement will be furnished to the RC Soldier at the time of transfer to the Retired Reserve. The applicant is advised to send a written request for issuance of a certificate of retirement to: Commander, U.S. Army Human Resources Command, Attention: Transitions Division (AHRC-PDP-T), 1600 Spearhead Division Avenue, Fort Knox, KY  40122-5408. This is not a records correction; no Board action is required. 10. Army Regulation 635-8 provides that Soldiers separating from an inactive duty status do not receive a DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001103 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001103 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2