BOARD DATE: 30 January 2018 DOCKET NUMBER: AR20160001442 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: 30 January 2018 DOCKET NUMBER: AR20160001442 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 amending item 14 of his DD Form 214 by adding the Basic Airborne Course, 3 weeks, August 2001. 2. The Board further determined that 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 adding any additional military schooling to his Calendar Year (CY) 2005 DD Form 214, awarding the Purple Heart, or changing his reason for separation to medical retirement ____________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: 30 January 2018 DOCKET NUMBER: AR20160001442 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 record by show he was medically retired, awarded the Purple Heart, and adding his military schools to his 30 September 2005 DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states, in summary: * he would like to fix the incorrect labeling of his discharge to show he was medically retired * he requests the Purple Heart based on abundant proof he was injured in combat on 23 March 2003 * he was injured due to enemy combat actions after the "Battle of the Escarpment" * after the incident in which his position came under artillery fire, he noticed pain, yet adrenaline had masked much of the pain * he was later administered morphine and a valium shot for the pain by SPC Samuel A___ * he was given Percocet for back and shoulder pain * at that time (early 2003) medical specialists only utilized stenography note pads to record injuries sustained in combat as well as a record of medications they administered * not many line of duty investigations were completed * Soldiers relied on their first sergeants and commanders to complete reports 3. The applicant provides: * self-authored letter * a one page reconsideration, DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 17 August 2005 * DA Form 4187 (Personnel Action), Combat Infantryman Badge (CIB) recommendation * list of CIB recipients * Airborne Course Diploma * DA Form 1059 (Service School Academic Evaluation Report) for the Primary Leadership Development Course (PLDC) * DA Form 1059 for Phase 1, [military occupational specialty (MOS)] 19K (M1 Armor Crewman) * DD Form 214 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. With prior enlisted service in the Texas and Michigan Army National Guard (ARNG) and Regular Army (RA), the applicant again enlisted in the RA on 3 May 2001. He held MOS 11B (Infantryman). On 1 July 2004, he was promoted to the rank of sergeant (SGT)/pay grade E-5. 3. On 17 August 2005, a PEB determined the applicant was unfit for continued military service. His record was informally reconsidered because of additional medical evidence. The DA Form 199, dated 15 August 2005, was superseded. The reconsideration of the informal PEB confirmed his unfitting condition of chronic lower back pain, post lumbar fusion (L5-S1) without neurologic abnormality, range of motion limited by pain, and antalgic gait. The PEB rated his condition using Department of Veterans Affairs (VA) Schedule of Rating Disabilities (VASRD) code 5241. He was assigned a 20 percent disability rating, and the PEB recommended separation with entitlement to severance pay. 4. The applicant’s PEB shows in item 10, if retired because of disability, the board makes the recommended finding that: a. The Soldier’s retirement is based on disability from injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurring in line of duty during a period of war as defined by law. b. The disability did result from a combat related injury as defined in Title 26 U.S. Code, section 104. 5. He was honorably discharged on 30 September 2005 in accordance with (IAW) Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b (3), by reason of disability with severance pay after completing 4 years, 4 months, and 28 days of net active service this period. His DD Form 214 shows in: * item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), among his awards are the Combat Infantryman Badge and the Parachutist Badge; there is no entry for the Purple Heart * item 14 (Military Education) shows he completed the Primary Leadership Development Course in August 2004 * item 18 (Remarks) shows he served in both Operation Enduring and Iraqi Freedom from 23 January to 24 August 2003 * item 25 (Separation Authority) shows AR 635-40, paragraph 4-24b(3) * item 28 (Narrative Reason for Separation) shows "Disability, Severance Pay" 6. His record is void of orders awarding him the Purple Heart. The applicant's medical records do not contain a record of treatment for an injury or wound sustained in action against an enemy or as a result of enemy action. 7. The ABCMR returned his previous application, dated 20 April 2014, without action because the applicant failed to exhaust all administrative remedies available to him to correct an alleged error or injustice, specifically for award of the Purple Heart. He was advised to apply to the Army Awards and Decorations Branch at the U.S. Army Human Resources Command (HRC) located at Fort Knox, KY. In his application to the ABCMR, he stated he received injuries during combat action from enemy indirect and direct field artillery fire. With his second application, he did not provide evidence showing he applied for the Purple Heart to the HRC Awards and Decorations Branch. 8. With his previous application he submitted a VA letter, dated 30 April 2014, showing his disability was service-connected and his combined service disability rating awarded by the VA was 100 percent. He was declared totally and permanently disabled. 9. The applicant provides: a. a self-authored statement summarized above; b. DA Form 199, dated 17 August 2005, summarized above; c. DA Form 4187 showing he was recommended for the Combat Infantryman Badge; d. a list of Combat Infantryman Badge recipients from his unit which includes his name; e. Airborne Course Diploma, dated 17 August 2001, showing the applicant completed the course; f. DA Form 1059 showing he completed PLDC on 18 August 2004; and g. DA Form 1059 for Phase 1, 19K (M1 Armor Crewman) course. He achieved course standards for the period 20 March thru 25 April 1999. h. DD Form 214 summarized above. 10. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) Senior Medical Advisor, a medical doctor. This official opined in pertinent part: a. A review of the applicant's medical record revealed a line of duty determination for injuries incurred on 15 March 2000 at Eagle Base, Tuzla, Bosnia. He sustained an injury to his right shoulder while weightlifting. b. He received medical examinations in October 1999 and March 2001 showing he had no physical limitations and was qualified for enlistment and/or retention. c. In September 2003, he had appendicitis in Iraq with an appendectomy in Baghdad, Iraq. He was medically evacuated to Landstuhl Regional Medical Center located in Germany and then to the United States with follow-on treatment at Fort Stewart, GA. Of note, he required further surgery. d. In February 2004, he experienced pelvic and abdominal pain. A computerized tomography (CT) scan showed no changes since his 2003 surgery. In April 2004, he had a series of cervical spine x-rays after a head injury (blunt force trauma) with no fracture noted. He experienced headaches. e. His electronic medical records show clinical encounters between September 2004 and September 2005. Numerous laboratory studies completed and reviewed between May 2002 and May 2005 and radiology studies completed during May 2002 through June 2005. f. PEB proceedings, dated 17 August 2005, show the applicant received a 20 percent disability rating for chronic low back pain, post lumbar fusion (L5-S1) without neurologic abnormality. The PEB shows his range of motion was/is limited by pain and he had an antalgic gait. g. A limited review of VA records through the Joint Legacy Viewer shows the applicant has 79 problems (with 58 entered by the VA including post-traumatic stress disorder (PTSD), mood disorder, nightmares, sleep disturbance, multiple back related complaints, anxiety not otherwise classified, depression, hypogonadism, and others). h. The available (military medical) record reasonably supports PTSD or another boardable behavioral health condition(s) existed at the time of the applicant's military service. He had several diagnoses in the months prior to discharge including generalized anxiety disorder, panic disorder with agoraphobia, and adjustment disorder with disturbance of emotions and conduct. He had symptoms of PTSD and depression. However, these conditions met medical retention standards IAW AR 40-501 (Standards of Medical Fitness), and did not warrant a separation through medical channels. He was treated with a combination of several medications and psychotherapy with improvement of his symptoms shown in his record. i. The applicant did not meet medical retention standards for chronic low back pain, post lumbar fusion (L5-S1) without neurologic abnormality IAW chapter 3 of AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. j. The applicant met medical retention standards for generalized anxiety disorder, panic disorder with agoraphobia, and adjustment disorder with disturbance of emotions and conduct, symptoms of PTSD, dysthymia, migraine and other headaches, history of non-cardiac chest pain, allergic rhinitis, history of right shoulder and neck pain/injury, history of left thumb/hand injury, and history of head injury/mild traumatic brain injury. k. The applicant's numerous medical conditions were duly considered during medical separation processing. 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 his discharge. l. No reference to a direct combat injury was found in the applicant's available medical records. 11. The applicant was provided a copy of the advisory opinion in order to afford him the opportunity to respond to its content. He responded by email stating in summary: a. He restated his request to correct his record by changing item 28 of his DD Form 214 to show a medical separation or medical retirement with item 25 changed accordingly. He also requested the Purple Heart and to add additional military schools to item 14 of his DD Form 214. (He does not provide the name(s) of the additional military school(s) that he believes should be added to his DD Form 214.) b. He sustained several injuries in Iraq in 2003 (during the invasion of Iraq) one of which is the reason for his disability (back issues). He requested several different (personnel) positions and was told that he had 6 months from the date of his back surgery to be operational and to be deployable to an infantry unit in accordance with 3rd Infantry Division (Mechanized) standards. However after a change of commanding generals, most of the injured Soldiers were placed into a medical holding unit and then medically separated. c. The medical specialists did not record his medical conditions on the correct forms. Before he left Iraq, he filled out several sheets concerning things he was exposed to such as nuclear, biological, and chemical hazards; explosions, and other health risks. d. He stated he was left deaf for almost 2 months during his deployment to Iraq. He provides the names of a Soldier and an officer who can attest to this injury occurring in July 2003. He knowns the paperwork attesting to his deafness from an explosion was not entered into his record. e. While on a 30-day leave post-deployment, he developed a staph infection near where he had his appendix removed while in Iraq. He sought medical assistance. f. (After his post-deployment leave) he returned to his unit and installation seeking medical treatment for intestinal issues (lack of bladder and bowel control) as well as back pain. He was informed by the Brigade Surgeon that only one medical issue at a time would be considered (for treatment). For him personally, he sought relief for his gastrointestinal issues. He received pain medication and underwent medical tests. g. Upon his reenlistment, he was advised to not seek medical treatment otherwise he could be separated. He was seen by a captain (CPT) (at the medical clinic) for his back and gastrointestinal issues. The CPT put him on light duty and (prescribed) stretches for a couple of weeks and he was told to return for a checkup. He continued his daily duties as directed by his supervisors. His intentions were to get back to a regular duty status and get through the physical problems. That did not happen. He could point fingers, name names, make excuses yet that would not clarify the situation he is attempting to address, nor does he feel that it would help any further explanation or get him any closer to closure. REFERENCES: 1. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 2. AR 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and will be prepared for all personnel at the time of retirement, discharge, or release from active duty. It states for item 14 enter formal in-service training courses completed during the period covered by the DD Form 214. This information is to assist the Soldier in job placement and counseling; therefore, do not list training courses for combat skills. 3. AR 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. 4. AR 635-40, in effect at the time, established the Army physical disability evaluation system according to the provisions of chapter 61, Title 10, U.S. Code and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provided for medical evaluation boards (MEB), which were convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. 5. AR 635-40, paragraph 3-1, provides that the mere presence of an 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 their office, grade, rank, or rating. A decision was made as to the Soldier's medical qualifications for retention based on the standards found in AR 40-501, chapter 3. These guidelines are used to refer a Soldier to a MEB. Retention standards should not be interpreted to mean that possessing one or more of the listed conditions or physical defects signifies automatic disability retirement. 6. AR 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). It outlines medical conditions which may render an individual unfit or which may preclude enlistment or appointment. Soldiers with conditions listed in chapter 3 who do not meet required medical standards will be referred into the physical disability evaluation system. a. For gastrointestinal and abdominal surgery, there is no requirement to refer a Soldier to an MEB for an appendectomy. For chronic pain, of one or both of the lower extremities that interferes with functions to such a degree as to prevent the individual from walking, running, weight bearing or satisfactory completion of required training or military duty a referral to a MEB is recommended. b. For anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to a medical evaluation board if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability. 7. 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 a disability incurred while entitled to basic pay. 8. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated or combined disability rating of at least 30 percent. 9. Title 10, U.S. Code, section 1203, provides for the physical disability separation with entitlement to severance pay of a member who has less than 20 years of service and a disability rated less than 30 percent. 10. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. DISCUSSION: 1. The regulatory guidance states to record formal in-service training courses completed during the period covered by the DD Form 214; combat skills should not be listed. The M1 Armor Crewman Course was not completed during the period covered by this DD Form 214. Being a parachutist is not solely a combat skill for Soldiers. It appears appropriate to add the Basic Airborne Course to his calendar year (CY) 2005 DD Form 214. 2. One of the criteria for award of the Purple Heart is that medical treatment must have been made a matter of official record and the cause of the wounding noted in the record. In his opening statement he acknowledges that medical specialists in the field in Iraq used notepads to document medical treatment. The applicant has not provided evidence indicating medical treatment was made a matter of official record for a wound incurred by enemy forces. Upon review by a medical doctor, his military medical records do not contain evidence he was treated for a wound incurred by enemy action. Thus he appears to not meet the regulatory criteria for the Purple Heart. 3. An informal PEB found the applicant medically unfit for chronic lower back pain, post lumbar fusion (L5-S1) without neurologic abnormality; range of motion limited by pain, and an antalgic gait. He received a combined rating of 20 percent and based on that percentage, by law, he was recommended for separation by reason of physical disability with severance pay. It appears he concurred with the PEB results, that the PEB covered all his disabling conditions and that he waived a formal hearing. A military medical doctor reviewed his medical records and confirmed he underwent a PEB and was separated based on physical disability rated at 20 percent. 4. It appears the applicant thinks he should receive an increase to his CY 2005 physical disability ratings based on changes to his overall health post discharge. He provided evidence from the VA showing that Federal agency rated him in 2016 as 100 percent disabled based on service-connected injuries or illness. 5. The applicant's medical separation with severance pay was accomplished in compliance with applicable laws and regulations, as substantiated by the advisory opinion, and it appears he concurred with the recommendation of the medical board while he was still in service. He was processed through the military physical disability evaluation system and it appears he waived his right to a formal hearing. There is no evidence he appealed the PEB findings and determination. As such, it appears the appropriate entries are shown on his 2005 DD Form 214 for item 25 and item 28 based on his reason for separation. 6. The VA 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 in 2016 to include adding medical conditions does not equate to an error by the Army during its processing of his 2005 PEB. By law, the VA acts independently providing assistance and compensation to veterans who meet their standards for 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) AR20160001442 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001442 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2