BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160001591 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: 7 September 2017 DOCKET NUMBER: AR20160001591 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 referring the applicant's case to the Office of The Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability through the Integrated Disability Evaluation System (IDES). a. In the event that a formal Physical Evaluation Board (PEB) is necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 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 medical retirement without benefit of the process described above. _____________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: 7 September 2017 DOCKET NUMBER: AR20160001591 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 medically retired from military service based upon unfitting medical conditions. 2. The applicant states he served in the Army National Guard (ARNG) of the United States and the Michigan ARNG (MIARNG) and he was assigned to Company A, 1st Battalion, 125th Infantry Regiment. He deployed with his unit to Iraq and served in support of Operation Iraqi Freedom. a. He states he redeployed in 2007 and his unit lost Soldiers to suicide after they returned to home station. After he had been home only a few months and while he was still married, his (now former) spouse nearly took her life. b. He states that his unit initiated action to process him for a medical discharge, but the process was not completed. He has dealt with physical illnesses, pain, and mental stress for the past 8 years. He adds that he suffers from post-traumatic stress disorder (PTSD). 3. The applicant provides no additional documents in support of his application. 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. The applicant enlisted and entered active duty in the Regular Army on 22 August 1996. He was awarded military occupational specialty 11B (Infantryman). 3. Three DD Forms 214 (Certificates of Release or Discharge from Active Duty) pertaining to the applicant show: a. He entered active duty on 22 August 1996, was honorably released from active duty (REFRAD) on 4 December 1998, and transferred to an ARNG unit to complete his military service obligation. He had completed 2 years, 3 months, and 13 days of net active service this period. Item 18 (Remarks) shows he served in Southwest Asia form 10 September 1997 to 17 December 1997. b. He entered active duty on 29 October 2003, was honorably REFRAD on 5 August 2004, and transferred to a MIARNG unit. He had completed 9 months and 7 days of net active service this period. Item 18 shows he served in Egypt in support of Operation Enduring Freedom from 21 January 2004 to 15 July 2004. c. He entered active duty on 29 May 2006, was honorably REFRAD on 13 September 2007, and transferred to a MIARNG unit. He had completed 1 year, 3 months and 15 days of net active service this period. Item 18 shows he served in Iraq in support of Operation Iraqi Freedom from 24 August 2006 to 11 August 2007. 4. An NGB Form 22 (Report of Separation and Record of Service) shows the applicant enlisted in the MIARNG on 21 March 2003 and he was honorably discharged on 20 September 2011 based on completion of required service. He completed 8 years and 6 months of net service this period; 4 years, 3 months, and 16 days of prior Reserve Component service; 2 years, 3 months, and 13 days of prior active Federal service; 15 years and 29 days of total service for pay; and 8 years of total service for retired pay. 5. Two DA Forms 2166-8 (NCO [Noncommissioned Officer] Evaluation Reports) (NCOER) show in Part IV (Values/NCO Responsibilities), block c (Physical Fitness and Military Bearing), for the period covered: * 1 October 2007 through 30 November 2008, in pertinent part, the entry, "did not take APFT [Army Physical Fitness Test] during rating period due to deployment-related ailments" * 1 December 2008 through 30 November 2009, in pertinent part, the entry, "Soldier was not administered APFT or height and weight due to Fitness for Duty Evaluation proceedings" 6. A review of the applicant's military personnel records failed to reveal evidence of a physical profile or that he was referred to a Medical Review Board MRB). 7. In the processing of this case, an advisory opinion was obtained from the Deputy Chief, Personnel Policy Division, National Guard Bureau (NGB), dated 2 March 2017. a. The NGB advisory official recommends partial approval. b. The NGB advisory official stated the applicant developed physical ailments and PTSD during his deployment to Iraq (29 May 2006 to 13 September 2007). He provided copies of the following documents that pertain to the applicant: (1) MIARNG, Company A, 1st Battalion, 125th Infantry, Detroit, MI, memorandum, dated 25 September 2009, subject: Report of Injury/Illness/ Disease. It shows, in pertinent part: * Date of Injury/Illness: 29 May 2006 to 13 September 2007 * Training Dates: 29 May 2006 to 13 September 2007 * How Injury Occurred: Applicant deployed to a combat zone (24 August 2006 to 11 August 2007), he got progressively sicker throughout the deployment, and continued to be sick. * Diagnoses: * Irritable Bowel Syndrome * PTSD (2) NGB, Arlington, VA, memorandum, dated 25 April 210, subject: Line of Duty Determination, that shows the attached DA Form 2173 (Statement of Medical Examination and Duty Status) for PTSD that occurred during Operation Iraqi Freedom was approved "In Line of Duty." (3) DA Form 3349 (Physical Profile), approved 26 January 2011, that shows the applicant was issued a permanent profile for PTSD (Codes "F" and U" with PULHES: "111113"). Item 7 (Does the Soldier meet retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), an "X" in the box for "No, Needs MEB [Medical Evaluation Board]." c. He stated that the applicant had an approved Line of Duty (LOD) and was referred to an MRB (based on his permanent profile), which should have initiated the process for evaluation by an MEB. The MIARNG reported that it has no record of the applicant being counseled or informed of his option to extend past the date of his expiration of term of service in order to complete the physical disability evaluation process (PDES). d. He concludes that there is insufficient evidence to support granting the applicant's request for medical retirement. However, he recommends the Board afford the applicant the opportunity for evaluation (MEB) through the issuance of invitational travel orders and referral to a physical evaluation board (PEB), if appropriate. e. He noted the advisory opinion was coordinated with the ARNG LOD Section and the Office of the Chief Surgeon, and that the MIARNG concurs with the recommendation. 8. On 3 March 2017, the applicant was provided a copy of the NGB advisory opinion to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. AR 40-501 sets forth policies, responsibilities, and procedures 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. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the disability evaluation system. Chapter 3, paragraph 3-5 (Use of the Veterans Affairs (VA) Schedule for Rating Disabilities), shows that only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Any non-ratable defects or conditions will be listed on the DA Form 199 (Informal PEB Proceedings), but will be annotated as non-ratable. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures 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. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through Integrated Disability Evaluation System (IDES). a. Chapter 3 (Policies), paragraph 3-5 (Use of the VA Schedule for Rating Disabilities), shows that only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. b. Chapter 4 (Procedures), paragraph 4-10, shows that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in AR 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. The Army system requires that the Soldier be rated as the condition(s) exist(s) at the time of the PEB hearing. 3. Title 10, United States Code, shows: * section 1201 provides for the physical disability retirement of a member who has a disability rated at least 30 percent * section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent DISCUSSION: 1. The applicant contends that his records should be corrected to show he was medically retired based upon unfitting medical conditions. 2. Records show the applicant was serving in the ARNGUS/MIARNG when he was mobilized on 29 May 2006. He served on active duty in Iraq in support of Operation Iraqi Freedom from 24 August 2006 to 11 August 2007. He was honorably REFRAD on 13 September 2007. a. The evidence of record shows that immediately after his REFRAD, deployment-related ailments were documented in his NCOERs, along with information that he did not take the APFT due to "Fitness for Duty Evaluation proceedings." b. Records show: * diagnoses of Irritable Bowel Syndrome and PTSD, as of 25 September 2009 * the NGB determined that the applicant's PTSD was "In Line of Duty" on 25 April 2010 * he was issued a permanent profile for PTSD with instructions for referral to an MEB on 26 January 2011 * he was administrative discharged based on completion of required service on 20 September 2011 3. There is no evidence of record that shows he was processed through the IDES. 4. The NGB advisory official recommends the Board afford the applicant the opportunity for evaluation through the IDES. The governing regulatory guidance supports such action to determine whether the applicant met retention standards at the time of his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001591 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2