ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 29 June 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160003529 1. Reference the attached Army Board for Correction of Military Records of Proceedings, dated 01 June 2017, in which majority of the Board members recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 1 O, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected to show she served through 23 September 2007 and earned 50 retirement points for that year, thereby giving her a total of 20 years of service credible for retired pay at age 60. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 30 October 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl ' .tt. Deputy Assistant Secretary of the Army (Review Boards) Printed on* Recycled Paper IN THE CASE OF: BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160003529 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ___x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ____x____ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160003529 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. IN THE CASE OF: BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160003529 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 her separation orders and National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) to show her separation from the Alabama Army National Guard (ALARNG) was the result of medical retirement following referral into the Integrated Disability Evaluation System (IDES) vice medical disqualification. 2. She subsequently revised her request and, in effect, added the following issues: * given her referral into IDES, and a resultant finding of unfitness for continued military service, correction of her records to show she was approved for continuation on active Reserve (COAR) * with COAR approval, correction of her records to show she served in the ALARNG the additional year needed for her to have 20 qualifying years for retirement purposes * payment of all back pay and allowances, concurrent with the request for 1 additional year of service * correction of her records to show her obstructive sleep apnea was duty related * permit her to remain in the Retired Reserve so she can receive monthly retired pay at age 60 * promotion to lieutenant colonel (LTC) effective the first time her promotion packet was evaluated by a promotion selection board – in effect, referral to a special selection board (SSB) * with that promotion, payment of any back pay and allowances * correction of her records to show she retired in the rank of LTC after 20 qualifying years of service * any other relief to which she is entitled [The applicant appears to base her request for promotion on an allegation that may be eligible under the provisions of Title 10 (Armed Forces), section 1034, known as the Military Whistleblower Protection Act (MWPA), because she contends she suffered retaliation (i.e., denied promotion) after making a protected communication to a member of Congress.] 3. The applicant states: a. On 30 November 2006, she was medically separated from the ALARNG. Her separation was not done in accordance with Army regulations, in that she was not briefed and she received no counseling indicating she could have her medical conditions evaluated within the Army Physical Disability Evaluation System (PDES) (now implemented under IDES). This error violated her procedural rights. b. Had she been properly briefed or counseled, she would not have accepted the findings and would have elected continuation on active duty (COAD) or COAR. No one gave her the rationale as to why she was medically disqualified for continued service; she only received a memorandum. At the time, she had neither a permanent physical profile rating of 3 nor 4 (commonly represented as P3 or P4) for obstructive sleep apnea. [A physical profile, as reflected on a DA Form 3349 (Physical Profile), is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary.] c. She is missing the forms typically associated with referral into IDES because of the above-cited error. In addition, she was never assigned a Physical Evaluation Board Liaison Officer (PEBLO) who could have assisted her with the disability evaluation process. d. Her disabling medical condition, obstructive sleep apnea, was not rated and she has been denied medical services, as well as the ability to file a disability claim with the Department of Veterans Affairs (VA). In addition, she now suffers from post-traumatic stress disorder (PTSD) and major depressive disorder (MDD), all because she was exposed to racism and discrimination during her military service. e. Major General (MG) A____ C. B____, the former Adjutant General (TAG), Alabama, abused his power in an effort to destroy her military career. This occurred after she filed a Congressional inquiry against him in April 1998 (in effect, a protected communication under the MWPA; the applicant was a captain (CPT) in 1998 and TAG was an LTC and her battalion commander). She contends MG B____'s actions caused her to incur PTSD and MDD; he is the reason she can no longer hold a job. f. She cites Title 10, U.S. Code, section 1176 (Enlisted Members: Retention after Completion of 18 or More, but Less than 20, Years of Service), subsection (b) (Reserve Members on Active Status), and section 12686 (Reserves on Active Duty within 2 Years of Retirement Eligibility: Limitations on Release from Active Duty). She contends these provisions state Soldiers who have completed 18, but less than 20, years of qualifying service (for retired pay purposes) will not be involuntarily separated without the approval of the Secretary of the Army or his designated representative. She implies she met these criteria and was involuntarily separated without proper authority. [Title 10, U.S. Code, section 1176 applies only to enlisted Soldiers serving on active duty, and is not relevant to Reserve Component (RC) commissioned officers. Section 12686 addresses only members of the RC on active duty.] g. She reiterates she never received a physical profile rating of P3 or P4 for her obstructive sleep apnea and maintains her medical condition was appropriately controlled by a continuous positive airway pressure (CPAP) machine. In addition, her sleep apnea did not interfere with her duties as an Equal Opportunity Advisor (EOA) and the Board can validate this by reviewing her officer evaluation reports (OERs), as well as her award of the Army Commendation Medal. At the time of her separation, she was assigned to a non-deployable unit. Even if she were in a deployable unit, she would have been fitted with an appropriate oral appliance that would have allowed her to deploy. h. After filing her initial application, she received her military medical records on 2 February 2016 and provided a copy to the Board. Following an examination of her records, she learned for the first time that she did have a physical profile rating of P3 with limitations (contrary to what she had said earlier). She "truly [does] not understand why [she] was disqualified to serve for obstructive sleep apnea, even though her P3 profile denotes that [she] can carry out all Common Military Tasks." She then enumerates each of the common military tasks and notes Soldiers must be capable of performing these tasks in order to be recommended for retention by a Military Occupational Specialty (MOS)/Medical Retention Board (redesignated as MOS Administrative Retention Review). i. She restates her contention that TAG, Alabama, abused his powers by denying her promotion from major (MAJ) to LTC. She indicates she is otherwise unclear as to why she was denied promotion prior to being medically disqualified, because her promotion packet was complete. She lists the documents that were included and notes her OERs were good to excellent; there was no derogatory information; she had been medically cleared for duty; she met height/weight standards and passed her Army Physical Fitness Tests (APFT); and she had completed the Command and General Staff Officers Course (CGSOC). j. As a result of all that has happened, she lost a third of her income, her car was repossessed, her home is now at risk of foreclosure, and she has filed for bankruptcy. She claims TAG, Alabama, destroyed her financially and mentally. k. In August 2016, she submitted additional arguments, stating she was not rated by the VA in addition to not receiving a disability rating from a PEB. She noted the VA Schedule for Rating Disabilities (VASRD) is a Federal regulation and the Department of Defense (DOD) grants disability benefits to service members when they develop service-connected medical conditions that make them unfit for duty. l. Her sleep apnea caused her to be unfit for continued service in the ALARNG, but she received nothing. She did not receive proper notice of her discharge and she questions whether she was actually separated. She asks why she was not given a disability rating in accordance with Title 38, U.S. Code. 3. The applicant provides: * letter from the Department of the Army (DA) Office of the Inspector General (IG) (DAIG), to the applicant, dated 11 January 2016 * letter from the Army Board for Correction of Military Records (ABCMR) to the applicant, dated 3 January 2012 * Congressional assistance documents, dated between 2012 and 2015 * two letters from TAG, ALARNG, to the applicant's Congressional representative, dated 5 January and 15 August 2012 * letter from the ALARNG IG to the applicant, dated 9 August 2012 * article, undated, titled "U.S. Army Medical Services Standards of Medical Fitness" * excerpt from Army Regulation (AR) 40-501 (Standards of Medical Fitness) and a document titled "Training Site Alabama (Medical Disposition and Physical Limitations on Military Service) * two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 7 July 1988 and 3 May 1991 * memorandum, dated 20 September 2006, subject: Medical Fitness Standards for Retention, with applicant's undated response * DA Form 4187 (Personnel Action), dated 31 October 2006 * ALARNG Orders 318-787, dated 14 November 2006 * NGB Form 22 for the period ending 30 November 2006 * ARNG Retirement Points History Statement, dated 14 November 2006 * DA Form 705 (APFT Scorecard), dated 6 November 2005 * ALARNG memorandum, dated 3 July 2006, subject: 2006 MAJ-LTC DA Mandatory Selection (06D) Board * 190 pages of medical records, dated between 1988 and 2016 * military résumé, dated 23 November 2009 * five DA Forms 1059 (Service School Academic Evaluation Report) for academic evaluation periods between 1991 and 2003 * Combined Arms and Services Staff School Diploma, dated 31 July 1998 * CGSOC Diploma, dated 24 February 2003 * five award certificates and two DA Forms 638 (Recommendation for Award), dated between 1992 and 2006 * 17 DA Forms 67-8 and 67-9 (OER) for rating periods from 22 July 1990 through 19 July 2004 * two diplomas, for Bachelor's and Master's degrees, dated May 1991 and December 1996 * DA Form 3349, dated 10 October 2000 * U.S. Army Reserve commission, dated 12 May 1990 * ALARNG appointment documents, dated 23 July 1990 and 30 May 1993 * Support Operations Course, Phase II, completion certificate, dated 25 April 1997 * Equal Opportunity Advisor RC Course Diploma and Commandant's List, dated 29 June 2001 * correspondence with the VA, dated 17 August 2012 and 17 December 2015 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 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 was born in 1967; she will be 60 years of age in 2027. 3. Having prior enlisted service in the U.S. Army Reserve (USAR) and the ALARNG, the applicant was appointed as a commissioned officer in both the USAR and the ALARNG and executed her oath of office on 6 May 1990. She served continuously as an M-Day Soldier (i.e., performing weekend drills, not in an Active Guard Reserve status). 4. ALARNG Orders 119-006, dated 29 April 1991, assigned her as a platoon leader in area of concentration 92F (Petroleum and Water) effective 1 April 1991. 5. Her OERs for rating periods dated between 5 May 1991 and 15 September 1994, show her duty position as Petroleum, Oil, and Lubricants (POL) Platoon Leader. Her duties included supervisory responsibilities over personnel and equipment assigned to the platoon. Effective with her OER for the rating period beginning 16 September 1994, her duty position title changed to Petroleum Officer. Her duties also changed to include managing the supply of POL to brigade elements and directing the Class III (POL) section. She retained this duty title until she was reassigned as a Company Commander effective 1 October 1998. Her official military personnel file (OMPF) does not show any other assignments involving POL after her company command. 6. She was promoted to MAJ and was extended Federal recognition effective 25 July 2000. 7. The DA Form 3349, with physician signatures dated September 2000, shows the applicant was assigned a P2 physical profile rating under the lower extremities (L) factor, specifically due to a fractured right ankle. 8. ALARNG memorandum, dated 17 November 2000, subject: Medical Duty Review Board Recommendation for (Applicant), states the board determined she was fit for military duty with limitations. 9. ALARNG Orders 361-074, dated 27 December 2001, reassigned her to a position as an EOA effective 30 December 2001. 10. The applicant received a favorable OER for the rating period 1 November 2003 through 19 July 2004. Her OMPF does not reflect any other OERs between 20 July 2004 and her separation date. * principal duty was EOA * APFT Pass, April 2004 – Height 68, Weight 195 – met height/weight standard * rater – Satisfactory Performance, Promote; Best Qualified * senior rater – Center of Mass 11. Other than separation orders and her NGB Form 22, the applicant's OMPF contains no documents associated with her separation. She provided the following related documents: a. DA Form 7349 (Initial Medical Review – Annual Medical Certificate), dated 5 February 2005, showing she listed three medical conditions: * ventricular tachycardia (faster than normal heart rate) – cleared for duty * gastric bypass surgery on 30 November 2004 – cleared with no complications * sleep apnea on 12 October 2004 – requires further evaluation b. DA Form 3349, dated 7 July 2005, showing a temporary physical profile rating for obstructive sleep apnea. It shows a rating of 3 under the physical capacity or stamina (P) body system factor and indicates "No" to the question regarding deployability in item 5 (Functional Activities for Permanent or Temporary Profiles). [DA Form 3349, item 5f, "Is Soldier Healthy without any Medical Condition that Prevents Deployment?"] c. DA Form 7349-R, dated 7 August 2005, shows the following conditions: * sleep apnea – being boarded (i.e., to be evaluated within the PDES) * ventricular tachycardia – cleared * gastric bypass surgery – cleared d. DA Form 3349, dated 4 May 2006, indicates a permanent physical profile rating of 3 under the "P" factor and a physical profile rating of 2 under the "L" body systems factor due to obstructive sleep apnea with CPAP and a history of gastric bypass surgery. The form shows a provisional clearance for duty. Regarding deployability, item 5f states "Yes." e. DA Form 7349-R, dated 7 May 2006, shows the following conditions: * ventricular tachycardia * gastric bypass * sleep apnea * fillings changed, sensitivity of gum-tooth * taking antidepressants due to divorce f. ALARNG memorandum, dated 20 September 2006, subject: Medical Fitness Standards for Retention, informed the applicant her current medical condition of obstructive sleep apnea was determined to disqualify her for further military service. (1) Her options were: * accept the findings and be medically discharged – she was eligible for retirement benefits at age 60 if she had at least 15, but less than 20, years of service and she would be issued an eligibility memorandum * request a nonduty-related (NDR) PEB, which would determine fitness for further military service (2) In an undated entry, the applicant acknowledged the notification and indicated, "I accept the findings and request that I be separated from the ALARNG. I understand that if I meet retirement eligibility requirements, I will be separated to the Retired Reserves. I would like my separation date to be 30 November 2006." 12. ALARNG memorandum, dated 20 October 2006, subject: Notification of Eligibility for Retired Pay at Age 60 (Selected Reserve 15-Year Letter), advised the applicant she was eligible for retired pay at age 60. Her eligibility resulted from the following: she was a member of the Selected Reserve; she had completed at least 15, but not 20 or more, qualifying years of service; and she had requested transfer to the Retired Reserve. 13. ALARNG Orders 318-787, dated 14 November 2006, directed the applicant's honorable separation from the ALARNG effective 30 November 2006 and transferred her to the Retired Reserve. The authority is shown as National Guard Regulation (NGR) 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5a(14), and AR 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). 14. Her NGB Form 22 shows she was honorably separated from the ALARNG on 30 November 2006. She completed 16 years, 4 months, and 8 days of net service for the period of the report; she had 2 years and 15 days of prior RC service; and she had 9 months and 14 days of prior active Federal service. Her total service for retired pay was 19 years. The form indicates she was transferred to the Retired Reserve and the authorities are shown as NGR 635-100, paragraph 5a(14); AR 40-501; and ALARNG Orders 318-787, dated 14 November 2006. 15. U.S. Army Human Resources Command (HRC) memorandum, dated 4 January 2007, subject: Notification of Promotion Status, notified the applicant she was not selected for promotion by the DA RC Selection Board. It does not specify the number of times she had not been selected. 16. The applicant provides: a. Letter, dated 27 April 1998, addressed to her Congressional representative, wherein she alleges her battalion commander, MG B____, later TAG, Alabama, discriminated against her based on race and sex, in that she was twice passed over for a position as a company commander. b. Letter, dated 5 January 2012, from MG P____ G. S____, TAG, Alabama, addressed to the applicant's Congressional representative, responded to the applicant's concerns regarding retirement, promotion consideration, and VA assistance. It states, in effect: * on 2 October 2006, the applicant requested separation from the ALARNG; this request was made instead of her electing to have a PEB review her case for medical retention * on 30 November 2006, she was separated from the ALARNG, and transferred to the Retired Reserve * as to promotion eligibility, each year the ALARNG holds an officer career management board, consisting of senior grade officials * the board is charged with producing a promotion list consisting of the best qualified officers; promotion selections are made from the order of merit list to fill officer vacancies within units * TAG instructed the ALARNG Transition Assistance Advisor to contact the applicant and assist her with submitting a VA claim c. Letter, dated 15 August 2012, from MG S____, TAG, Alabama, addressed to the applicant's Congressional representative, addressed the applicant's request for information regarding her promotion and separation from the ALARNG. It essentially states: * as to the applicant's non-selection for promotion, her records were evaluated by a promotion selection board; the board was made up of a diverse group of senior leaders, and produced an order of merit list * she was not selected, but could still have been considered by subsequent boards; the ALARNG has a limited number of positions available, and there is more competition at the higher grades * over 50 percent of the MAJs in the ALARNG have more than 5-years' time-in-grade (TIG); some elect to retire and others continue to pursue promotion opportunities * the applicant had 6-years' TIG when she separated, and was, by no means, beyond the norm * promotions are not automatic, and not all MAJs make it to LTC * regarding her request for personnel records, only those records personally applicable to her could be released * concerning her medical discharge, she elected to separate rather than have her case reviewed by an NDR PEB; she received an honorable character of service, and the regulatory authority is cited on her orders * her case was processed in accordance with the appropriate Army regulations d. Letter, dated 9 August 2012, addressed to the applicant from the ALARNG IG, that, in essence, states the ALARNG IG conducted a thorough inquiry into the applicant's request for assistance regarding her lack of promotion, retirement, and medical services benefits. In accordance with AR 20-1 (IG Activities and Procedures), paragraph 6-1e (Time Limit), her complaint was determined to be untimely, in that the events described occurred between 1998 and 2006. [AR 20-1, paragraph 6-1e, requires complainants to present their issues and allegations to an IG in a timely manner so that IGs can effectively resolve them. An IG is not required to look into a complaint if the complainant has failed to present the matter within 1-year of learning of the alleged problem or wrongdoing, or if more than 3 years have elapsed since the date of the problem or wrongdoing. The time limit does not apply to the requirement to report allegations against senior officials as outlined in paragraph 1-4b(5)(d).] [Paragraph 1-4b(5)(d) states IGs will conduct investigations to resolve allegations of impropriety brought to an IG by any source of any alleged impropriety by a general officer, promotable colonel, or comparably ranked civilian.] e. Letter, dated 11 January 2016, addressed to the applicant from the DAIG, stating, in effect, the DAIG concluded its review of the applicant's request and determined the matter was not IG-appropriate. The letter went on to refer the applicant to the ABCMR for resolution of her concerns. 17. On 21 November 2016, a psychologist with the Army Review Boards Agency (ARBA) provided a medical advisory. a. ARBA requested an advisory opinion for the applicant's case to determine if there were medical conditions not properly considered during separation processing. Specifically, the following questions were to be addressed: * does the available record reasonably support PTSD, or other behavioral health conditions, as existing while on active duty, and, thus, requiring referral into the PDES? * did these conditions fail medical retention standards, as outlined in AR 40-501, warranting separation through medical channels? * include any additional information deemed appropriate b. She is petitioning to be separated under IDES. She supplied evidence with her application; there were no VA medical records available for review using the Joint Legacy Viewer; and, her DOD electronic medical records (Armed Forces Health Longitudinal Technology Application) revealed no entries. (1) Since leaving the service, she indicates she has developed PTSD and MDD. She attributed her MDD and PTSD to the handling of her discharge by MG B____, TAG, Alabama. She further asserts her PTSD and MDD have made her unable to work. The applicant is not contending she had a behavioral health disability that made her unable to serve at the time of her retirement. (2) She has repeatedly affirmed she had no mental or physical conditions that prevented her from meeting the functional requirements of her position as an EOA officer. Additionally, one of her repeated assertions is that, at the time of her separation, she was functionally able to do what was required of her as a Soldier. c. With regard to the questions ARBA asked to have addressed: (1) Available records do show she has PTSD, but not at the time of her separation. (2) While in military service, she did not meet the criteria for a medical retirement due to mental disorders. (3) The applicant has self-reported that the difficulties responsible for her current dysfunction result from the manner in which she was separated (i.e., by her own characterization, her referral into IDES rests on factual, administrative, and legal claims, not on behavioral health problems she had at the time of her separation). Additionally, she is on record as writing the treatment she received controlled her behavioral health conditions, and those conditions were not interfering with her ability to work as a Soldier. d. Conclusion. Given the information provided by the applicant, and a review of relevant records, the applicant's claim that she should have been referred into IDES does not hinge on her behavioral health status at the time of her separation. 18. The Case Management Division (CMD) provided a copy of the ARBA medical advisory, dated 21 November 2016, to the applicant for review and comment. On 13 December 2016, the applicant submitted a written response, along with additional evidence. She essentially stated: a. She reasserted that her discharge for sleep apnea was not processed in accordance with Army regulations, and stated she was petitioning the Board to investigate the reasons why she was not referred into the PDES (now known as IDES). She contends the ALARNG violated her right to procedural due process under the Fourteenth Amendment of the U.S. Constitution, and she details the history and tenets of this amendment. She maintains the ALARNG did not treat her equally. She notes she was able to perform her duties as an EOA, the unit to which she was assigned was nondeployable, and her DA Form 3349 indicated she could perform all functional activities, to include no restrictions on deployment. She asks, rhetorically, why was she separated? b. As stated in her application, she received memoranda from the ALARNG regarding her medical fitness for sleep apnea right after being denied promotion to LTC, even though she had completed 100 percent of CGSOC. She had been passed over twice for promotion to LTC, but was not separated from the ALARNG; she asserts this was because her record spoke for itself, and separating her would have raised a "red flag." c. In preparation for this rebuttal, she reread the memoranda, dated 20 September 2006, and realized she did not receive a PEB Checklist, a counseling statement, or her physical profile. She asserts these forms were intentionally kept from her. She acknowledges she signed the memorandum, wherein she accepted the findings of medical disqualification and requested separation with transfer to the Retired Reserve. She states she signed this document without receiving counseling, and out of fear. Her experience as a CPT, when she filed a Congressional complaint against her battalion commander, and which was based on racial and sexual discrimination, taught her to be wary of her leadership. She has been told her Congressional complaint embarrassed the ALARNG, and more significantly, she embarrassed then LTC B____ (later MG B____, TAG, Alabama). She again suggests TAG, Alabama, used his power and influence to her detriment. d. She once more contends her medical separation was not completed in accordance with Army regulations in that she only received the 20 September 2006 memorandum. She also reasserts she did not receive equal protection (again alluding to the 14th Amendment to the Constitution) because she was not assigned a PEBLO. She neither saw nor touched a DA Form 5891 (Acknowledgment of Counseling on Legal/Procedural Rights), wherein it states she cannot be separated or retired for physical disability without a full and fair hearing. [The principal purpose of the DA Form 5891 is to explain legal and procedural rights, and is provided to a Soldier prior to the convening of a formal PEB. Inherent in this form's use is the requirement a Soldier must first have been referred into the PDES/IDES.] e. Additionally, a PEBLO did not give her a DA Form 5893 (MEB/PEB Counseling Checklist), and she was never told she could ask to continue being active in the ALARNG until her 20th year (apparently referring to COAR). Had she known about this opportunity, she would have requested the one additional year she needed to be eligible for full retirement benefits. [The DA Form 5893 is applicable to all Soldiers processing through the PDES/IDES; it is generated within MEB phase (i.e., for Soldiers already referred into PDES/IDES, and is completed as part of the preparation for having his/her case assessed by an MEB).] [The primary objective of COAR is to conserve RC manpower by effective use of skills or experience determined to have a critical shortage. A Soldier who is physically unqualified for further military service has no inherent or vested right to continue military service. COAR is an exception to policy program, and the approval authority is the Army Deputy Chief of Staff, G-1. To be considered for COAR, a Soldier must be determined as unfit following referral into the PDES, the medical condition must be considered stable, and the Soldier must be able to work in a military environment without affecting his/her health. There additionally must be a critical shortage for the Soldier's military occupational specialty or area of concentration . COAR does not apply to RC Soldiers who have been medically disqualified due to a nonduty-related impairment.] f. The applicant enumerates the forms associated with referral into the PDES, and asserts her procedural due process rights were violated by not having these forms produced for her case. The cited forms include: * DA Form 3947 (MEB Proceedings) * DA Form 7652 (PDES Commander's Performance and Functional Statement) * VA Form 21-0819 (VA/DOD Disability Evaluation Board Claim) * DA Form 2173 (Statement of Medical Examination and Duty Status) * DD Form 261 (Report of Investigation – LOD and Misconduct Status) g. She further contends her disability (i.e., her sleep apnea) was incurred or aggravated while she was entitled to basic pay, and that the performance of active service or inactive duty training (IDT) was the "proximate cause." In addition, her sleep apnea was "not the cause of [her] intentional misconduct or will[ful] neglect and was not incurred during a period of unauthorized absence." h. According to the ALARNG, her sleep apnea was a nonduty-related medical condition, because of an assertion she did not receive this diagnosis while on active duty. With this determination, she is now ineligible for either VA disability compensation or healthcare. She disagrees with this outcome because sleep apnea has been linked to high blood pressure, heart problems, and other ailments. Although sleep apnea can be caused by obesity, age, or a deviated septum, medical experts also believe long-term exposure to dust, toxins, sand, and fumes can contribute. She asserts she had long-term exposure when she served as a petroleum officer. She handled Jet Propellant 8 (JP8) (jet propulsion fuel) and gasoline. This occurred over a period of years and continued until her promotion to MAJ, when she was transferred to another assignment. (She was reassigned from the duty position of petroleum officer in October 1998 while still a CPT when she assumed a company command she was promoted to MAJ in July 2000). As a civilian, she never handled JP8 and claims there is no way she would have incurred sleep apnea as a civilian. She cites two VA appellate decisions that appear relevant because they ascribe causes of sleep apnea as including exposure to smoke, dust, and JP8. i. She clarifies she is not asking the Board to change the basis of her discharge from sleep apnea to PTSD, MDD, and attention deficit hyperactivity disorder (ADHD), but notes she was diagnosed with depression while serving in the ALARNG. She alleges the onset of these conditions is directly linked to how she was treated and her discriminatory and erroneous medical separation. She recognizes her PTSD manifested itself after her involuntary separation from the ALARNG. Because her PTSD was not deemed to have a service connection, she is unable to obtain treatment from the VA. j. She lists additional requests (cited at the beginning of this Record of Proceedings) with the following supplemental information: * correction of her military records to reflect she was approved for continuation on active duty (COAD) (should read COAR) * she cites ABCMR Docket Numbers AR20110001781 and AR20140002146 as her basis for COAR approval * show her sleep apnea as being duty-related (due to long-term exposure to JP8, smoke, and dust) k. She restates her assertion that her discharge was unfair because she had only 19 years of service. She reasserts that Soldiers with 18, but less than 20, years of service cannot be involuntarily separated by law without the approval of the Secretary of the Army or his designee (presumed to mean under the provisions of Title 10, U.S. Code, cited above, but that apply only to RC officers serving on active duty). l. The applicant provides the following new evidence: (1) Memorandum from MG P____ G. S____, TAG, Alabama, to the applicant, dated 4 October 2016, wherein he addressed the applicant's Congressional inquiry. MG S____ stated, in effect: * the applicant mentioned the applicability of 38 Code of Federal Regulation (CFR) to her case, but TAG pointed out 38 CFR only applied to line-of-duty (LOD) situations * because her sleep apnea with CPAP was NDR, she was processed under the rules that apply to NDR cases; [NDR cases only involve a fitness determination, and are not eligible for a disability rating] * regarding her allegation that procedures were not followed, she was processed in the same manner as any other Soldier with NDR medical conditions * TAG noted the applicant had acknowledged acceptance of the process in writing, and elected to be discharged (2) Record of Proceedings for ABCMR Docket Number AR20140002146, dated 8 October 2014, that addressed an applicant's request for COAD, vice his placement on the Temporary Disability Retired List and Permanent Disability Retired List (TDRL/PDRL), as well as being granted an adjustment of his date of retirement. The Board granted this request. This case also references ABCMR Docket Number AR20110001781, dated 24 February 2011, wherein the ABCMR granted full relief to an applicant by voiding the applicant's placement on the TDRL and correcting the record to reflect the applicant was approved for COAD for a period ending when she reached 20 years of active Federal service, at which time she was retired. Both applicants were former enlisted Soldiers and the approvals were based on the applicants not being properly counseled regarding COAD. (3) Two Board of Veterans' Appeals decisions, dated 1 October 2010 and 4 May 2012, associated with service connection for sleep apnea due to exposure to chemicals/dust/toxins. One case involved an ARNG Soldier who was serving on active duty in Spain and was exposed to JP8 while performing duties as an aircraft mechanic. The VA's decision in support of this veteran was the result of extensive medical evidence showing blood tests with abnormally high levels of certain chemicals indicative of hydrocarbon exposure. The other case involved a veteran of the Gulf War, during which he alleged exposure to smoke, dust, sand storms and chemicals. The VA noted prolonged and marked occupational exposure to organic solvents can cause sleep apnea, although it is rare. It also recognized there was credible lay evidence that veterans deployed during the Gulf War were exposed to smoke, dust, sand storms, and chemicals. While the evidence was not conclusive, there was as much proof for as against a favorable decision. As such, VA applied the "benefit of the doubt" doctrine (as stated in Title 38 (Veterans Benefits), U.S. Code), and granted service-connection for this veteran's sleep apnea, in effect acknowledging it was incurred by exposure to smoke, dust, sand storms, and chemicals. [The "benefit of the doubt" doctrine is outlined in Title 38, U.S. Code, Chapter 51 (Claims, Effective Dates, and Payments), Section 5107 (Claimant Responsibility; Benefit of the Doubt). Section 5107(b) states, for those cases where positive and negative evidence is approximately balanced (interpreted by VA as when the evidence is equally weighted 50:50, i.e., equipoise); the Secretary of Veterans Affairs (VA) is required to give a claimant for VA benefits the "benefit of the doubt."] (4) Blank DA Forms 7652, 2173, 5891, 5893, and 3947; a blank DD Form 261; and a VA Forms 21-0819. Two documents that explain the Independent Medical Review and the DA Form 4037 (Officer Record Brief). (5) VA Form 21-4138 (Statement in Support of Claim), dated 5 January 2015, completed by the applicant's sister, which verifies the effects of the applicant's sleep apnea. (6) VA Form 21-0960P-3 (Review PTSD Disability Benefits Questionnaire), date not legible, apparently completed by a physician, and regarding her MDD and PTSD diagnoses. (7) Officer Data Sheet, which provides a summary of the applicant's personnel information. m. On 17 January 2017, the applicant provided an extract of Department of Defense Instruction (DODI) 1332.38 (Physical Disability Evaluation), dated 14 November1996, and submitted additional arguments, stating, in effect: * DODI 1332.38 proves she was fit to continue her military career * on the extract she has included her editorial notes showing how, in her view, the DODI supports her arguments * she also describes the "Notification and Federal Employee Antidiscrimination and Retaliation (No Fear) Act," enacted by Congress on 15 May 2002; she states this act should have protected her * she summarizes antidiscrimination and whistleblower protection laws, and alleges the ALARNG retaliated against her 19. On 26 January 2017, the ARBA medical advisor provided an advisory opinion. a. CMD requested a medical advisory review of this case for sleep apnea, as well as any other alleged medical conditions that might warrant separation through medical channels or medical conditions not considered during separation processing. b. The applicant is petitioning for a medical discharge. She states she was disqualified from further military service because of sleep apnea with CPAP. c. Following a review of documents provided by the applicant, her available military medical and personnel records, and a limited review of any available VA medical records via VA's Joint Legacy Viewer, the medical advisor determined: (1) The available record did not reasonably support that PTSD, or another boardable behavioral health condition(s), existed at the time of the applicant's military service. This conclusion was based on the ARBA medical advisory opinion, dated 21 November 2016. (2) The applicant did not meet medical retention standards for obstructive sleep apnea, as well as because of a history of bariatric surgery (also referred to as gastric bypass). * applicant was a member of the ALARNG, and was diagnosed with obstructive sleep apnea in 2004; at the time, no LOD determination was made * referring to available records, applicant's weight went from 195 pounds in April 2004 to 237 pounds in September 2004; she was not in compliance with requirements of AR 600-9 (The Army Weight Control Program) * the applicant's excessive weight should have resulted in a finding of not in the line of duty (NILOD), suspension of favorable actions, and weight monitoring (3) Per AR 40-501, the purpose of an MEB is to assess whether a Soldier meets medical retention standards, assuming the symptoms of hypersomnolence (recurrent episodes of excessive daytime sleepiness or prolonged nighttime sleep) or snoring cannot be controlled with therapy. Otherwise the Soldier is profiled with a permanent, level 2, physical profile. (4) From a medical retention perspective, a Soldier who requires CPAP therapy for obstructive sleep apnea has a medical condition that affects deployability, due to the requirement of electrical power to run the CPAP device. * DA Form 3349 requires a determination whether a Soldier has any medical conditions that may prevent deployment * applicant's non-LOD obstructive sleep apnea with CPAP is a medical condition that certainly limits worldwide deployment to a significant degree * obstructive sleep apnea with CPAP requires a theater waiver, depending on mission and location (5) The applicant also underwent gastric bypass surgery on 12 October 2004. Under current policy, surgical procedures for obesity are not authorized in any component of the Army, to include the ARNG. A Soldier who consents to, or undergoes a surgical procedure for obesity in any facility, whether military or civilian, may be subject to separation from the military without benefits. This prohibition reflects the fact that associated post-surgical nutrition requirements, hydration/limited fluid capacity, and dietary restrictions may adversely affect worldwide deployability. (6) The applicant met medical retention standards under AR 40-501 and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) for the following medical conditions: * history of cardiac catheterization/ablation (surgical removal of body tissue) for supraventricular tachycardia * depression * history of right ankle fracture/pain * dental problems * hypertension * other conditions (7) The applicant's medical conditions were duly considered during separation processing and a review of the available documentation found no evidence of a medical disability or condition that would support changing either the character or reason for discharge/retirement. As such, referral into IDES is not indicated in this case. 20. CMD provided a copy of the ARBA medical advisory, dated 26 January 2017, to the applicant for review and comment. On 8 February 2017, the applicant sent in her response, along with additional evidence not previously submitted. a. As stated earlier, she is seeking a review of the procedures used by the ALARNG to discharge her. She accepts that sleep apnea is a valid disability that disqualifies Soldiers from further military service. She acknowledges she has sleep apnea and that it was diagnosed in 2004 while she was in the ALARNG. She stated the medical advisory addressed everything except the violation of the aforementioned procedures. b. She provides the following comments: (1) The advisory opinion did not include all of her periods of active duty. (2) During her sleep apnea evaluation, she weighed 235 pounds and was asked what she weighed at age 18. With regard to that evaluation, the ARBA medical advisor had written, "weight gain: '70 pounds in 5 years. Age 18 - 135 pounds. Now - 237 pounds' (reviewer comment: the math doesn't add up [i.e., 135+70=205, not 237])." The applicant maintained this was nothing but a computational error made by the nurse, not the applicant. (3) On 15 March 2006, Dr. R____ S____ answered the first two items on a typed sheet with no heading (referring to an entry on the medical advisory opinion that stated: "Letter from applicant to sleep physician, dated 15 March 2006, with reply 17 March 2006: 1) Does she still have OSA? Yes. 2) Does she require the C-PAP Machine? Yes…"). The applicant affirms that, obviously, the answers would be "Yes." She also had a gastric bypass procedure performed so that she could lose weight, but, despite the operation and her weight loss, she still has sleep apnea, and requires a CPAP. (4) The advisory opinion failed to include the medical disposition and physical limitations form completed by Dr. S____ on 29 March 2005. This form is important and crucial because the form is one criterion used to retain a Soldier. Dr. S____ put no limitations on her when he completed the section on functional activities, except to place the limitation of needing electric power to operate the CPAP. Deployability cannot be the sole reason to discharge a Soldier. [An earlier version of AR 635-40, dated 15 August 1990, included language stating a sole criterion for determining physical unfitness was whether a Soldier was deployable "worldwide under field conditions." The revision, dated 8 February 2006, deleted this criterion.] (5) If a Soldier has been performing his/her duties adequately up to the point when he/she is referred to an MEB/PEB, then that Soldier can be retained. The applicant contends she was doing her job without any problems, but was nonetheless separated. (6) She describes the LOD standard, as stated in Title 38, U.S. Code, section 105, and she affirms AR 40-501 showed sleep apnea with CPAP as medically disqualifying. She notes AR 40-501 also addressed procedures for discharging Soldiers whose injuries were found to be NILOD or NDR. She goes on to describe NILOD, but then gives details regarding the procedures for NDR cases (it appears NILOD may have been conflated with NDR; she also cites "TAPD Policy Memorandum Number 4, Processing RC NDR Cases," which appears to refer to U.S. Army Physical Disability Agency Policy/Guidance Memorandum Number 4: Processing RC NDR Cases, dated 28 February 2005). (7) She states AR 600-8-24 (Officer Transfers and Discharges), paragraph 2-21 (Rules for Processing Involuntary Release from Active Duty due to Maximum Service), subparagraph a(3), indicates an officer may be retained on active duty until eligible for retirement, if he or she is within 2 years of active service retirement eligibility. Soldiers who have 18, but less than 20 years of qualifying service may not be involuntarily discharged unless due to misconduct. Per NGR 635-100, involuntary separation between 18 and 20 years of service requires the approval of the Chief, National Guard Bureau. She reiterates her earlier statements as to why she accepted the results cited in the 20 September 2006 memorandum and states she lost her military career, and eventually her civilian job as a teacher. She received no severance pay and was not given an Honorable Discharge Certificate. She feels she has nothing to show for her 19 years of service. (8) She reasserts her claim she incurred her disability (obstructive sleep apnea) due to handling JP8 and gasoline, inhaling exhausts and fumes, and breathing dry dirt and sand during field training exercises. She again contends there is no way she incurred sleep apnea from her civilian profession. (9) The requirements of attending CGSCOC, while also being a wife and mother, and holding a civilian job, were very demanding. She weighed 237 pounds at her sleep apnea evaluation in September 2004. She confirms she was grossly overweight, and blamed her depression and sleep apnea, as well as having to deal with racial and sexual discrimination. She used food as a coping mechanism. In addition, having sleep apnea made it hard to lose weight. (10) She met Army weight standards in April 2004, and points out, unlike the Regular Army, the ALARNG did only one weigh-in and one APFT per year. Because of this, she was not weighed in September 2004. The medical advisory reflected a calculation of her body mass index based on her weight of 237 pounds. She asserts this calculation may not be accurate because it does not appear to consider the measurements of her hip, forearm, neck, and wrist. (11) She further claims her excessive weight was in the LOD (apparently meaning it was incurred while serving on active duty or IDT) because she completed IDT on 19 September 2004 (as confirmed by a September Leave and Earnings Statement (LES)), and her sleep apnea evaluation was on 20 September 2004. The two dates are close enough to be considered "proximate." She then defines "proximate cause" as the cause that, in a natural and continuous sequence, unbroken by an independent or unforeseeable new cause, results in the disease or injury, and without which the disease or injury would not have occurred. (12) She contends, because she was going through the PDES process, an LOD should have been completed by an MEB/PEB. [Per AR 600-8-4 (LOD Policy, Procedures, and Investigations), an LOD is initiated by medical authority, and finalized in command channels. The intent is to determine whether misconduct or negligence was involved in a disease, injury, or death, and investigations can be either informal (when no misconduct is indicated) or formal. Neither MEBs or PEBs are tasked with completing LODs.] (13) On 6 November 2005, she weighed 137 pounds, and this was because of the success of her gastric bypass surgery (performed on 30 November 2004). (14) As for her gastric bypass surgery, she has searched the Internet and her library in an effort to locate regulations that address the Army's policy on this procedure. She only found a DOD policy, dated 11 May 2007; she found nothing for the 2004 to 2006 time frame. She noted her DA Form 7349-R (Initial Medical Review – Annual Medical Certificate) listed her gastric bypass surgery and stated a doctor had cleared her for this procedure. She further stated she was not counseled during this evaluation as to the possibility of being separated without benefits because of having the procedure done. (15) She cited sections of AR 635-40 and addressed LODs. She also reiterated her earlier comments regarding gastric bypass surgery. (16) She stated her hope the Board will examine the entirety of her medical discharge, specifically as to the procedures followed by the ALARNG. She believes she was subjected to discrimination and retaliation. She included three quotes from Dr. Martin Luther King, Jr., that she has found inspiring. (17) She quoted the U.S. Army Soldiers' Creed and included references from NGR 600-200 and AR 15-185 (ABCMR). From AR 15-185, she specifically highlighted a section addressing recommendations the Board can make to the Secretary of the Army regarding disciplinary or administrative actions that could be taken against any Army official found to have committed an act of reprisal against an applicant. c. Her additional new evidence consisted of: * memorandum, dated 11 May 2007, subject: Policy on Bariatric Surgical Procedures for Active Duty Service Members * applicant's LES, with check date of 29 September 2004 * letter, dated 19 January 2005 REFERENCES: 1. NGR 635-100, in effect at the time, paragraph 5a(14), requires separation when an officer becomes medically disqualified for further military service under NGR 635-101. 2. NGR 635-101 (Efficiency and Physical Fitness Boards), in effect at the time, prescribes criteria and procedures for determining the capacity and general fitness of commissioned officers for continued Federal recognition in the ARNG. Reasons to withdraw Federal recognition include a disqualifying medical or physical condition when that condition prevents the officer from performing her duties. Each case must be decided upon the relevant facts, and a determination of fitness or unfitness must be dependent upon the abilities of the officer to perform the duties of her office, grade, and branch. The standards in AR 40-501, chapter 3, apply for retention purposes. 3. AR 40-501, in effect at the time, provides medical retention standards, and is used to determine which medical conditions will be referred to a PEB. a. Paragraph 3-41 (General and Miscellaneous Conditions and Defects) states a Soldier will be referred to an MEB when obstructive sleep apnea or sleep-disordered breathing causes daytime hypersomnolence or snoring that interferes with the sleep of others, and cannot be corrected by medical therapy, surgery, or oral prosthesis. The diagnosis must be made using a nocturnal polysomnogram and the evaluation of a pulmonologist, neurologist, or a provider with expertise in sleep medicine. b. Chapter 10 (ARNG) sets policies and procedures for medical examination and physical standards for the ARNG. It states the medical retention standards outlined in chapter 3 apply to all ARNG Soldiers. c. ARNG Soldiers with NDR medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 are eligible to request referral to a PEB for a fitness determination. NDR medical conditions do not require referral to an MEB and cases are not sent through a PEB liaison officer. Once an ARNG Soldier requests, in writing, to have his/her case be reviewed by a PEB for fitness determination, the case will be forwarded to a PEB from the Soldier's unit. 4. AR 635-40, in effect at the time, established the Army PDES, and implemented chapter 61 (Retirement or Separation for Physical Disability), Title 10, U.S. Code. It set forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Chapter 3 stated 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. 5. DOD Directive 1332.18 (Separation or Retirement for Physical Disability), in effect at the time, implemented law and policy regarding separation of RC Soldiers with disabling medical conditions. Each RC member shall execute and submit annually a certificate of physical condition. Any RC member who is pending separation for an NDR impairment or condition shall be afforded the opportunity to enter the disability evaluation system (DES) for a determination of fitness. If determined to be fit, the Secretary concerned may deem the member medically qualified for retention the RC. 6. DODI 1332.38, in effect at the time, implemented policy and prescribed procedures for separating service members because of medical disqualification or physical disability. a. NDR impairments were defined as impairments of members of the RC that were neither incurred nor aggravated while the member was performing duty. Members with NDR impairments are eligible for referral to a PEB solely for a fitness determination, but not for a determination of eligibility for disability benefits. b. An unfit member will be discharged under the provisions of Title 10, U.S. Code, when not entitled to physical disability compensation due to having an NDR medical impairment that disqualifies the member for retention in the RC, and either the member does not request referral into the DES for a fitness determination, or such referral resulted in a finding of unfit. Disposition will be in accordance with appropriate service regulations (for ARNG officers, the regulation is NGR 635-100). 7. Memorandum, dated 28 February 2005, Subject: Policy/Guidance Memorandum Number 4: Processing RC NDR Cases, in effect at the time, provided policy and procedures for implementing DOD policy that RC Soldiers pending separation for medical disqualification may request referral of their case to a PEB for a fitness determination. a. The determination of whether a case is forwarded to the PEB as an NDR case rests with the RC. Soldiers who fall below the medical retention standards of AR 40-501, chapter 3, and who are pending separation for medical disqualification, may request a PEB. Separation action must be initiated in accordance with RC regulations prior to the Soldier requesting the PEB. The Soldier's request for PEB evaluation must be in writing. b. DA Form 7349 is acceptable for use in adjudicating cases. 8. Title 38, U.S. Code, sections 1110 (Wartime Disability Compensation) and 1131 (Peacetime Disability Compensation – Basic Entitlement), permit the VA to award compensation for disabilities that were incurred in, or aggravated by, active military service. Because they operate under separate provisions of law, determinations made by VA are not binding on the Army. a. The Army rates conditions determined, at or prior to discharge, to be physically unfitting such that the Soldier is disqualified from further military service. The unfitting conditions must either be the result of or aggravated by active military service. b. By contrast, VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. The VA does not have authority or responsibility for determining physical fitness for military service. 9. Title 10, U.S. Code, section 1034, prohibits the restriction of communications with members of Congress, as well as any retaliation for such communications. The law requires an IG, after receiving an allegation, to determine expeditiously if there is sufficient evidence to warrant an investigation and, when there is sufficient evidence, conduct an investigation in an expeditious manner. Neither the initial determination nor an investigation is required when the allegation is made more than 1 year after the date on which the service member becomes aware of the personnel action that forms the basis for his/her complaint. 10. DOD Directive 7050.06, dated 23 July 2007, in effect at the time, implemented the provisions of the MWPA as codified in Title 10, U.S. Code, section 1034. a. The directive established that no person would restrict the right of members of the Armed Forces to make protected communications with specified leaders and government officials. (1) The MWPA prohibits restricting communications with a Member of Congress; an IG; or a member of a DOD audit, inspection, investigation, or law enforcement organization. (2) It also prohibits personnel actions against members in retaliation or reprisal for making or preparing a protected communication. b. Protected communications are defined as: (1) any lawful communication to a Member of Congress or an IG and/or (2) a communication in which a member of the Armed Forces communicates information that the member reasonably believes evidences a violation of law or regulation, including: * a law or regulation prohibiting sexual harassment or unlawful discrimination * gross mismanagement * gross waste of funds or other resources * an abuse of authority * a substantial and specific danger to public health or safety c. Reprisal is defined as "taking or threatening to take an unfavorable personnel action, or withholding or threatening to withhold a favorable personnel action, for making or preparing to make a protected communication." d. A "personnel action" is any action taken that affects, or has the potential to affect, the military member's current position or career. Personnel actions include promotions, disciplinary or other corrective actions, transfers or reassignments, performance evaluations, and any other significant changes in duties or responsibilities inconsistent with the military member's grade. e. Neither an initial determination nor an investigation is required when the allegation is made more than 1 year after the date on which the member becomes aware of the personnel action that is the subject of the allegation. 11. AR 20-1 prescribes policy and procedures concerning the mission and duties of The Inspector General. It also prescribes duties, missions, standards, and requirements for IGs throughout the Army. a. Paragraph 1-13b(2) (Prohibited Activity – Prohibitions Against Reprisal – (Military Whistleblower) states: (1) Persons subject to this regulation will not take (or threaten to take) an unfavorable personnel action or withhold (or threaten to withhold) a favorable personnel action with respect to a member of the Armed Forces for making or preparing a (lawful) protected communication. (2) Lawful communications are those communications made to an IG; Member of Congress; member of a DOD audit, inspection, or investigation organization; law enforcement organization; or any other person or organization (including any person or organization in the chain of command starting at the immediate supervisor level) designated under regulations or other established administrative procedures to receive such communications. (3) The term "lawful communication" encompasses information that the Soldier reasonably believes provides evidence of a violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination, gross mismanagement, a gross waste of funds or other resources, an abuse of authority, or a substantial and specific danger to public health or safety. b. The Glossary provides the following definitions: (1) Founded/Unfounded: * "Founded" is one of two final dispositions for an IG issue to be used when the IG's inquiry into the matter determined that the problem had merit and required resolution * "Unfounded" is the second of two final dispositions for an IG issue to be used when the IG's assistance inquiry into the matter yields no evidence that a problem existed for the IG to resolve (2) Substantiated/Not Substantiated: This is a conclusion drawn by an IG at the close of an investigative inquiry or investigation when the preponderance of credible evidence suggests that the subject or suspect did or did not do what was claimed in the allegation. (3) IG Investigation: This is a formal fact-finding examination into allegations, issues, or adverse conditions of a serious nature that provides the directing authority a sound basis for making decisions and taking action. * an IG investigation involves the systematic collection and examination of evidence that consists of testimony recorded under oath, documents, and, in some cases, physical evidence * only the directing authority can authorize IG investigations using a written and signed directive * IGs report the conclusions of their investigations using a Report of Investigation (ROI) (4) ROI: A written report used by IGs to address allegations, issues, or adverse conditions to provide the directing authority, command, or State IG a sound basis for decisions. The directing authority or command or State IG approves the ROI Inquiry. 12. AR 600-8-29 prescribes the policies and procedures for promotion of active duty officers. a. Paragraph 7-2 states SSBs may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned officers for promotion when HQDA discovers an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. b. Paragraph 7-3 states an officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial or the board did not consider correspondence to the board president that was delivered after the cutoff date for such correspondence established in the promotion board zone of consideration message. c. Paragraph 7-11 states officers who discover that a material error existed in their file at the time they were non-selected for promotion may request reconsideration through HRC. Reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error. 13. AR 15-185 prescribes policies and procedures for the ABCMR. It states the ABCMR considers individual applications that are properly brought before it. a. Paragraph 2-9 contains guidance on the burden of proof. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases using the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant seeks multiple corrections to her military records centered on two primary contentions: a. She should have been medically retired for a duty-related physical disability (obstructive sleep apnea), vice being separated due to medical disqualification. b. She suffered retaliation, perpetrated by a former TAG, ALARNG, and occurring between 1998 and 2006. The retaliation took the form of being denied promotion to LTC, and was caused when the applicant sent a protected communication to her member of Congress in April 1998, the result of which essentially embarrassed him. 2. Regarding her contentions concerning her medical separation: a. The applicant was diagnosed with obstructive sleep apnea in 2004 and this medical condition was identified as part of the normal process used to ensure members of the ARNG maintain medical qualification. Because there was no evidence it had been incurred during any active duty periods, the ALARNG appropriately processed her case under procedures established for NDR medical conditions. b. The procedures, in effect at the time, included offering the affected Soldier options to separate or have his/her case evaluated by a PEB. NDR medical conditions specifically are not qualified for a disability rating or compensation, and the PEB's sole purpose was to make a fitness determination. Had the applicant selected this option, she would have had the opportunity to have her case reviewed and possibly found to be fit for continued military service. c. Essentially the same process was followed in 2000 when she suffered a fractured right ankle and was evaluated by a medical duty review board for a fitness determination. As such, it seems reasonable to presume she had, or should have had, enough familiarity with the NDR process to make an informed decision regarding the options offered in the September 2006 memorandum. 3. She asserts her obstructive sleep apnea should be considered duty related, and with this finding, she should be referred into the PDES/IDES. In support of this contention, she argues its cause was her alleged long-term exposure to JP8, fumes, and dust while serving, between 1991 and 1998, as both a POL platoon leader and petroleum officer. She offers no substantiating evidence, but cites two VA appellate decisions as validation of her claim. The evidence of record does not appear to show her sleep apnea was caused by either JP8 or dust/exhaust exposure. a. Following a thorough review of the applicant's available medical records, the ARBA medical advisor found no basis to refer her into the PDES/IDES. b. Regarding her evidence showing VA appellate decisions appearing to support her arguments, VA decisions are not binding on the Army. Even assuming the applicant's assertions, she offers no proof of either her exposure or any physical effects. Additionally, the evidence of record and her cited cases do not appear to validate her claims: * the applicant served as a POL officer and it is reasonable to presume she had some exposure to hazardous chemicals, but she was not an operator; her role was supervisory * she was an M-Day Soldier (i.e., weekend drills and annual trainings) and this, coupled with her supervisory role, appears to limit the likelihood of extended exposure to JP8 * first VA appellate case – o an ARNG Soldier claimed service-connected sleep apnea due to JP8 exposure o she was, at the time, on active duty in Spain, and, serving as an aircraft mechanic, and apparently was regularly exposed to JP8 as a result of her duties o medical tests confirmed high levels of organic compounds in her blood o the applicant submits no blood tests that confirm her blood shows comparable levels of organic compounds associated with JP8 * second VA appellate case – o Gulf War veteran claimed service-connected sleep apnea due to long-term exposure to dust, sand, fumes, and smoke o the VA appellate board essentially acknowledged Gulf War veterans were exposed to dust, sand, fumes, and smoke o medical evidence confirmed sleep apnea could be caused by such exposure, but acknowledged this was rare o the VA board applied the "benefit of the doubt" doctrine (i.e., when evidence is 50 percent for and 50 percent against, the VA must find for the veteran) o the "benefit of the doubt" doctrine is required by the provisions of law under which the VA operates – it does not apply to disability cases under Title 10, U.S. Code o the Board determines cases based on preponderance of evidence (i.e., supporting evidence of more than 50 percent), which is a higher standard of proof than that for the "benefit of the doubt" 4. She asserts her records should be corrected to show she was approved for COAR and, with this approval, her records should show she served an additional year of qualifying service for retired pay purposes. This option only applies to RC Soldiers who have been referred into the PDES/IDES, and only then after a PEB determines the Soldier is unfit for continued military service. Additionally, Soldiers who are physically unqualified for further military service do not have an inherent or vested right to continue military service. Given the basis of the applicant's medical separation was not duty related, she was not eligible for COAR consideration. 5. The applicant asserts she has nothing to show for her 19 years of service and argues she should have been permitted to remain in the ALARNG until she reached 20 qualifying years of service. (1) In support of this claim, she cites laws and regulations that are not applicable to an ARNG commissioned officer in her situation. Title 10, U.S. Code, section 1176, applies only to active duty enlisted Soldiers, and section 12686 affects only RC Soldiers serving on active duty. Additionally, the portion of AR 600-8-24 she quotes describes cases involving officers on active duty. She was serving as an M-Day ARNG commissioned officer and the cited references did not apply. (2) She was offered the opportunity to be issued an eligibility for retired pay at age 60 letter and she accepted. As such, in 2027, she will be able to apply for and receive retired pay and benefits. This opportunity was only offered because she had completed at least 15 but not yet 20 qualifying years of service. 6. Based on the foregoing, the processes and authorities applied in her case appear to have been appropriate under the laws, regulations, and policies in effect at the time. Because she was not eligible for COAR and, thus, an additional year of service, it does not appear to be appropriate to revise her qualifying years of service for retired pay to 20 years. 7. Concerning her claim that her case, in effect, should be considered under the provisions of the MWPA and with it, her promotion to LTC, she does not appear to be eligible. a. The event that she contends triggered the retaliation by MG B____ occurred in 1998. While the evidence of record is largely void on the question of when she was considered by LTC promotion selection boards, it is evident this would have occurred prior to her separation in 2006. b. By law, claims made more than 1 year after discovery of the alleged retaliation do not require action. The applicant filed complaints with both the ALARNG and DAIG, and, in both cases, no action was taken because her complaint was not deemed timely. c. Notwithstanding the time limit imposed by law, the applicant supports her contention only with the argument her personnel file was, in her view, sufficiently competitive. (1) She offers no documentary evidence that would compellingly affirm her non-selection for promotion was in any way affected by alleged retaliation perpetrated by TAG, Alabama. (2) Promotion selection boards are, by their nature, confidential and, as such, there is no clear way to know the exact basis for non-selection. Nonetheless, she submits no proof that would counter the view her non-selection was simply a function of the promotion selection board finding other officers better qualified. d. The available evidence does not support referral of the applicant's case to the DODIG for investigation under the MWPA. With this finding, there appears to be no reason to refer her case to an SSB or issue back pay and allowances. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003529 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003529 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2