BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20160001339 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: 25 January 2018 DOCKET NUMBER: AR20160001339 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: 25 January 2018 DOCKET NUMBER: AR20160001339 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, reconsideration of his previous request for correction of his record to show his United States Army Reserve (USAR) non-duty related (NDR) separation due to medical disqualification was a disability separation. 2. The applicant states: a. He was medically disqualified (not result of own conduct) and transferred to the Retired Reserve effective 2 March 2007. The reason for his retirement was hypertension, cardiomyopathy, and asthma. His hypertension and cardiomyopathy were diagnosed while he was in an active duty status. b. He was stationed at Fort Dix, New Jersey from August 1990 to August 1991. These conditions disqualified him from officer candidate school, active duty, and active Reserve service. He respectfully believes these conditions should have been adjudicated as a duty related case. c. The advice rendered was without availability of the active duty medical records. He also was unaware that he could make such a request to change his records until now. 3. The applicant provides: * DA Form 199 (Physical Evaluation Board (PEB) Proceedings) * Orders 07-031-00051, dated 31 January 2007 * reports of medical examinations * medical documents 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records in Docket Number AR20090015968 on 29 April 2010. 3. The applicant has previously been denied a correction to his NDR separation because his record failed to show evidence of an error or injustice. In his new request he argues that his request meets the criteria for reconsideration and warrants consideration by the Board. 4. The applicant's records show he was born on 4 May 1962 and enlisted in the USAR on 26 August 1985. He served through multiple reenlistments or extensions in the USAR, held various military occupational specialties (MOSs) including MOS 91E (Dental Specialist) and MOS 71G (Patient Administration Specialist). He attained the rank/grade of first sergeant (1SG)/E-8. He was assigned to the 4209th U.S. Army Hospital, Lexington, KY. 5. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was ordered to active duty on 28 August 1990 and honorably released from active duty on 27 August 1991 based on completion of required active service. He had completed 1 year of net active duty service during this period. 6. On 9 March 2003, he appeared before an MOS/Medical Retention Board (MMRB) that convened at the 81st Regional Support Command (RSC), Birmingham, AL, to evaluate his ability to perform the physical requirements of his MOS. The MMRB recommended placing him on a 30-day probationary period for a potential upgrade of his P-3 profile to a P-2. Specifically, he needed an EKG (electrocardiogram), a pulmonary function study, a measure of his blood pressure, enlarged heart, asthma, and any other restrictions. 7. It is unclear if he submitted the required tests/studies subsequent to the MMRB; however, on 3 April 2003, by memorandum from the 81st RRC, he was notified that after a thorough review of his most recent physical profile, dated 26 February 2003, and all other pertinent records and reports, the MMRB recommended his P-3 profile be upgraded by his unit and that he be retained in his primary MOS. His medical condition did not preclude satisfactory performance of his primary MOS in a worldwide field environment. 8. On 8 June 2003, he was issued a permanent physical profile with a "2" in the P (physical capacity or stamina) and the L (lower extremities) portions of his Military Physical Profile Serial System (PULHES). The profile listed the medical conditions of asthma (controlled), hypertension (controlled), and assigned functional limitations of no intense running or pushups. 9. On 1 August 2005, he was issued a permanent physical profile that assigned a "3" in the P and the U (upper extremities) factors of his PULHES. The profile listed the medical conditions of asthma, allergies and bronchitis, hypertensive heart disease, upper back pain, and knee arthritis, and assigned the functional limitations of no overseas assignments without definitive care, and no running, marching, or a carrying a rucksack. It also stated he needed to submit medical documentation, pulmonary function testing, and Army Physical Fitness Test (APFT) card for processing under Army Regulation (AR) 40-501 (Standards of Medical Fitness) for asthma and upper back pain. 10. A memorandum, from the 81st RSC Command Surgeon, dated 22 September 2005, notified the applicant that a review of the medical records he submitted indicated he did not meet retention standards of AR 40-501 for asthma and upper back pain. He was also advised that Soldiers who were medically disqualified and were pending separation for NDR impairment could request a PEB solely for the purpose of fitness determination; however, Soldiers were not eligible for disability benefits for NDR impairments. He was further instructed to return an option selection memorandum through his chain of command. 11. His option selection memorandum is not available for review with this case. However, along with the notification, he would have been required to acknowledge the notification and elect one of the following options on the notification of medical unfitness for retention and election of options, in accordance with AR 135-178 (Enlisted Administrative Separations): a. request reassignment to the Retired Reserve in accordance with AR 140-10 (Assignments, Attachments, Details, and Transfers), if he had completed 20 years of qualifying service; or b. request an honorable discharge from the USAR; or c. request consideration by an NDR PEB which is limited to fitness determination; it cannot award disability compensation. During an NDR-PEB a permanent disqualification is placed on the Soldier’s records to prevent the Soldier from performing active military service until the issue is resolved. 12. On 10 November 2005, the U.S. Army Human Resources Command, St. Louis, MO, issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). This letter notified him that he had completed the required years of qualifying Reserve service for retired pay on application at age 60. 13. Copies of his Narrative Summary and medical evaluation board proceedings are not available for review with this case. 14. His record is void of any documentation or a determination that shows his diagnoses of hypertension and cardiomyopathy were incurred during or caused by his military service. 15. On 9 November 2006, an informal PEB convened at Fort Sam Houston, TX, and determined he was unfit for further service. His physical profile for asthma, hypertension, and cardiomyopathy permitted no functional activities and no APFT aerobic event. His case was adjudicated as an NDR case under the provisions of Department of Defense (DOD) Directive 1332.18, paragraph 3.3 and DOD Instructions (DODI) 1332.38, Part II, paragraph E3.P2.3. The PEB recommended a referral of his case for disposition under an appropriate Reserve Component (RC) regulation. 16. On 17 November 2006, he elected not to concur with the findings and recommendations of the PEB, demanded a formal hearing without a personal appearance, and requested counsel be appointed to represent him. 17. On 26 January 2007, the applicant’s PEB proceedings show he elected to concur with the findings and recommendations of the PEB, and waived a formal hearing of his case. Furthermore, it shows that counsel informed him of the findings and recommendations of the PEB. Additionally, counsel explained to him the result of the findings and recommendations, and his legal rights pertaining thereto. 18. On 2 March 2007, the applicant was transferred to the Retired Reserve by reason of medical disqualification. 19. On 9 March 2007, he was transferred to the Retired Reserve by reason of voluntary request. 20. His ARPC Form 249-E (Chronological Statement of Retirement Points) shows he completed 20 years of qualifying service toward non-regular retirement. This form further shows that from 1994 through 2007, he did not have more than 39 days of active service per retirement year and never more than 60 inactive duty points. From 2005 through his retirement in March 2007, he did not perform any active or inactive duty service. 21. A previous U.S. Army Physical Disability Agency (USAPDA) advisory opinion obtained on 2 March 2010 shows: a. A legal advisor at the USAPDA recommended no change to the applicant's records. b. The legal advisor stated the applicant was selected for separation by the USAR because he was found medically disqualified due to several non-duty/non-service related medical conditions. None of his conditions were found to have been in line of duty (ILOD) conditions and the PEB reviewed these conditions for fitness for duty determination; not for entitlement to any compensation or disability rating. c. Since the applicant had no ILOD findings for his conditions he was not authorized PEB duty related disability processing. If he now believes his conditions should have been officially found to have been incurred ILOD by his unit, his case should be reviewed by the USAR as the USAPDA had no authority to make such LOD findings. Nevertheless, the USAR actions in separating him appear to be correct based on the available evidence. d. Diseases incurred or manifested while an RC Soldier, but not caused by or permanently aggravated by military service are not considered service-connected or ILOD. There appears to be no error in the processing of his case. 22. He was provided a copy of this advisory opinion on 4 March 2010 and he submitted a rebuttal on 1 April 2010 wherein he stated that he previously suffered an injury to the lower abdomen in 1995 and he has been trying to get additional medical records from his unit. 23. In support of this request for reconsideration the applicant submitted medical documents that do not clearly show whether or not he was diagnosed with hypertension and cardiomyopathy while serving on active duty in 1991. 24. On 17 October 2017, the Senior Medical Advisor, Army Review Boards Agency, provided an advisory opinion. The medical advisory shows that: a. After reviewing the applicant's electronic medical record (AHLTA) revealed no clinical encounters (note: implementation began in 2003). There were no clinical notes. Radiology report reviewed from July 2005. Laboratory results reviewed from July 2005. The applicant’s paper service treatment record (STR) was not available for review from the National Personnel Records Center (NPRC) at the National Archives and Records Administration (NARA). The applicant’s iPERMS (Interactive Personnel Electronic Records Management System) records were reviewed. b. A limited review of VA (Veteran’s Administration) records through the JLV (Joint Legacy Viewer) with 30 VA-listed problems including chronic post-traumatic stress disorder (PTSD), anxiety disorder, depressive disorder, dysthymic disorder, insomnia, dyssomnia, adjustment reaction, migraine, neoplasm of uncertain behavior of pituitary gland, sleep apnea, asthma, degenerative disc disease, shoulder pain, hypertension, nephrolithiasis (kidney stones), allergic rhinitis, sensorineural hearing loss, obesity and others. The applicant is currently VA service connected at 80 percent overall (Nephritis at 60 percent, mood disorder at 50 percent, hyperparathyroidism at zero percent, and deformity of the penis at zero percent). c. The senior medical advisor found the available records did not reasonably support PTSD or another boardable behavioral health condition(s) existed at the time of the applicant's military service. d. The applicant met medical retention standards for elevated blood pressure (hypertension), history of heart murmur (with normal echocardiogram), abnormal lab value (elevated creatinine), visual acuity, history of dental caries, and other physical, medical and/or behavioral conditions in accordance with (IAW) chapter 3, AR 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service (active duty service in 1986 and 1990-1991). e. The applicant did not meet medical retention standards for asthma, hypertension and cardiomyopathy IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant’s era of service (USAR 1991 to 2007). He was separated for failure to meet medical retention standards after a NDR PEB in accordance with Reserve component regulations. f. The applicant met medical retention standards for sleep problems/sleep apnea, depression/adjustment reaction, headaches/migraines, allergies, history of dental caries, neck pain, degenerative disc/joint disease, shoulder pain, back pain, knee pain, history of abdominal pain, nephrolithiasis, history of appendicitis/appendectomy (1998), constipation, visual acuity, and other physical, medical, and/or behavioral conditions that were applicable to the applicant’s era of service (USAR 1991 to 2007). g. The applicant’s medical conditions were duly considered during medical separation processing. The history of working in a building with asbestos in 1990-1991 is not material to the medical conditions under consideration. The applicant does not have a diagnosis of mesothelioma or other asbestos-linked condition. h. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character, reason, disability determination (non-duty related, i.e. not in the line of duty) for the discharge in this case. i. The senior medical advisor determined that this is clearly a non-duty related case. The applicant clearly met retention standards (no impairment) at the time of separation from active duty in 1991 (and previously in 1986). The applicant clearly had a normal echocardiogram prior to separation from active duty and no signs or symptoms of asthma (until 1993). The applicant’s unfitting conditions of asthma and cardiomyopathy probably secondary to hypertension developed well after separation (a year or more) and the applicant continued to meet medical retention standards (no impairment) for over a decade after separation (chronic condition). 25. On 23 October 2017, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity (14 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. AR 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. 2. AR 135-178 (Enlisted Administrative Separations) prescribes the policies for the separation of enlisted Soldiers from the RCs. Chapter 15 of this regulation provides for separation when it has been determined that an enlisted Soldier is no longer qualified for retention by reason of medical unfitness. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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 PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet several LOD criteria to be eligible to receive retirement or severance pay benefits. One of the criteria is that the disability must have incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. 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. Separation by reason of disability requires processing through the PDES. 4. DODI 1332.18 covers separations or retirement for physical disability. Paragraph 3.3 states that the sole standard to be used in making determinations of unfitness due to physical disability shall be unfitness to perform the duties of the member's office, grade, rank or rating because of disease or injury. Any member of the Ready Reserve who is pending separation for an NDR impairment or condition shall be afforded the opportunity to enter the PDES for a determination of fitness. If determined fit, the Secretary concerned may deem the member medically qualified for retention in the Ready Reserve in the specialty for which he was found fit. 5. DODI 1332.38 implements policy, assigns responsibilities, and prescribes procedures for retiring or separating service members because of physical disability, making administrative determinations for service members with Service-incurred or Service aggravated conditions, and authorizing a fitness determination for members of the Ready Reserve who are ineligible for benefits because the condition is unrelated to military status and duty. Paragraph E2.P2.3 states members of the Ready Reserve with NDR impairments, and who are otherwise eligible, will be referred into the PDES upon the request of the member or when directed under service regulations. Referral will be solely for a determination of fitness for duty. DISCUSSION: 1. The applicant contends his USAR NDR separation due to medical disqualification should be changed to an ILOD related case (disability separation). 2. The available evidence shows the applicant was found physically unfit for further service based on medical conditions. Accordingly, he was notified of this finding and the options available to him. His record is void of the acknowledgement notification of medical unfitness for retention and election of options. However, the presence of a PEB indicates he may have elected consideration by an NDR-PEB, which is limited to fitness determination; it cannot award disability compensation. 3. He was considered by an NDR-PEB and he was found medically unfit for retention. The applicant’s PEB proceedings show he elected to concur with the findings and recommendations of the PEB, and waived a formal hearing of his case. Furthermore, he was informed of the findings and recommendations of the PEB. Additionally, counsel explained to him the result of the findings and recommendations and of his legal rights. 4. The available evidence does not show he was diagnosed with hypertension and cardiomyopathy while on active duty. His records are void of documentation or a determination that shows his diagnoses of hypertension and cardiomyopathy were incurred or caused by his active duty service. 5. In November 2006, an informal PEB found his physical profile for asthma, hypertension, and cardiomyopathy permitted no functional activities. He appears to have requested an NDR-PEB, which confirmed these were unfitting conditions. He was transferred to the Retired Reserve. 6. The available evidence also shows that from 1994 through 2007 he did not have more than 39 days of active duty service per retirement year and never more than 60 inactive duty points (the equivalent of one 3-day weekend a month). There is no evidence indicating his unfitting medical conditions were incurred during those times. 7. The ARBA senior medical advisor found no evidence of a medical disability or condition which would support a change to the character, reason, or disability determination (non-duty related, i.e., not in the line of duty) for the discharge in this case. He further determined that this is clearly a non-duty related case. The applicant clearly met retention standards (no impairment) at the time of separation from active duty in 1991 (and previously in 1986). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001339 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001339 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2