BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160004028 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160004028 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________x___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160004028 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 records to show she was separated from military service based on permanent physical disability. 2. The applicant states she is currently assigned to the U.S. Army Reserve (USAR) Control Group (Retired Reserve). She has service connected medical conditions that have worsened over the years, which place limitations on her mental and physical abilities to serve in any capacity. She is no longer interested in continuing military activities or obligations that may endanger her mental and physical health. She has contacted her former unit, the National Guard Bureau, and U.S. Army Human Resources Command concerning the matter, which has led to her request to the Army Board for Correction of Military Records. 3. The applicant provides copies of her: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Radiologic Examination Report * Twenty Year Letter * Department of Veterans Affairs (VA) rating decisions * Request for Discharge from Retired Reserve CONSIDERATION OF EVIDENCE: 1. The applicant was born in January 1959. She had prior honorable enlisted service in the USAR from 7 January 1982 through 28 December 1993. 2. A DD Form 214 shows she attended active duty for training during the period 16 March through 26 July 1982 and she was awarded military occupational specialty 76P (Materiel Control and Accounting Specialist). 3. The applicant had a break in military service from 29 December 1993 through 10 September 1998. 4. She enlisted in the Army National Guard (ARNG) of the United States and in the California ARNG (CAARNG) on 11 September 1999. She was promoted to sergeant first class/E-7 on 11 February 2003. 5. A DD Form 214 shows she was ordered to active duty in support of Operation Enduring/Iraqi Freedom on 7 February 2003. She was honorably released from active duty on 8 June 2004, and transferred to a CAARNG unit. She served in Kuwait/Iraq during the period 21 April 2003 through 23 April 2004. 6. A DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report) for the period 1 October 2006 through 30 September 2007 is the last evaluation report filed in her military personnel records. It shows, in pertinent part: * the applicant – * passed the Army Physical Fitness Test * met Army height/weight standards * the rater evaluated her overall potential for promotion and/or service in positons of greater responsibility: "Among the Best" * the senior rater evaluated her – * overall performance: "Successful (1)" * overall potential for promotion and/or service in positons of greater responsibility: "Superior (1)" 7. Joint Force Headquarters, CAARNG, Sacramento, CA, Orders 246-1026, dated 2 September 2008, show the applicant was discharged from the ARNG on 10 September 2008 and assigned to the USAR Control Group (Retired Reserve) effective 11 September 2008. 8. A review of the applicant's military service records failed to reveal any evidence that she was referred to a medical evaluation board. This review also failed to reveal any evidence that she requested a discharge from the USAR. 9. In support of her request the applicant provides the following documents. a. A Radiologic Examination Report, dated 17 August 2004, pertaining to the applicant, that shows a mild flexion, lateral of the lumbosacral spine. b. Headquarters, CAARNG, Sacramento, CA, letter, dated 18 September 2008, that shows the G-1, Army Division, notified the applicant that she had completed the required years of qualifying Reserve service and she was eligible for retired pay upon application at age 60 (Twenty Year Letter). c. VA documents pertaining to the applicant that include: (1) Two pages of a VA rating decision, dated 4 June 2010, that shows the VA's evaluation of adjustment disorder with depressed mood rated at 10 percent (%), now diagnosed as post-traumatic stress disorder (PTSD), was increased to 50%, effective 5 May 2010. (2) Two pages of an undated VA rating decision that shows the VA granted the applicant service connection for: * sacroiliac joint dysfunction with trochanteris pain syndrome and osteoarthritis, left hip, rated at 10%, effective 1 July 2015 * trochanteris pain syndrome and osteoarthritis, right hip, rated at 10%, effective 1 July 2015 (3) One page of an undated VA rating decision that shows the VA determined the applicant's bilateral hearing loss was not related to her military service, so service connection could not be granted. d. A letter with "California National Guard" letterhead, dated 15 April 2014, that shows the applicant requested discharge from the retired reserve for the purpose of retirement effective 15 April 2014. 10. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical staff, dated 6 June 2017. a. The ARBA senior medical advisor reviewed the applicant's military personnel records, electronic medical records (AHLTA), and medical records provided by the applicant with her application. (1) The senior medical advisor provided an extensive description of the applicant's clinical encounters, medical examinations, and x-ray series of her hip and spine that indicated mild degenerative changes of bilateral hip joints and of the spine. (2) A limited review of VA records through the Joint Legacy View revealed 18 problems listed, including chronic PTSD, low back pain, degenerative of intervertebral disc, hypermobility syndrome, neuropathic pain, allergic rhinitis, hearing loss, tinnitus, and others. He noted the applicant's VA service connected overall disability rating of 60% as of 11 August 2015 (i.e., chronic adjustment disorder/PTSD (50%), lumbosacral or cervical strain (10%), tinnitus (10%), and limited motion of ankle (10%). b. The senior medical advisor found the applicant did meet medical retention standards for history of foot numbness after exercising, history of spinal canal stenosis per magnetic resonance imaging, and other medical, physical and/or behavioral conditions in accordance with (IAW) Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. c. The senior medical advisor concluded the applicant's medical conditions were duly considered during her medical separation processing. d. He found no evidence of a medical disability or condition which would support a change to the character or reason of the discharge in this case. 11. On 7 June 2017, the applicant was provided a copy of the ARBA advisory opinion to allow her the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. AR 635-40 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 integrated disability evaluation system. a. Disability compensation is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. It also allows Soldiers to appeal the decisions of the various boards and agencies involved in determining a Soldier's disability ratings. b. The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating. If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature. The Army system requires that the Soldier be rated as the condition(s) exist(s) at the time of the physical evaluation board hearing. The VA may find a Soldier unfit by reason of a service-connected disability and may even assign a higher rating after separation. The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability. 2. 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% * 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% DISCUSSION: 1. The applicant requests transfer from the USAR Control Group (Retired Reserve) to the retired list based on a permanent physical disability. 2. There is no evidence of record that shows the applicant had an unfitting physical or mental condition during her military service that precluded her from reasonably performing the duties of her office, grade, rank, or rating. a. The applicant's medical conditions were duly considered during her separation processing. b. She met medical retention standards IAW AR 40-501, chapter 3, and AR 635-40 at the time she was transferred to the retired reserve. 3. The evidence of record shows the VA has granted the applicant disability compensation for several service-connected medical conditions. However, this is not evidence that the applicant did not meet Army medical retention standards at the time of transfer to the retired reserve. 4. Both the statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service. Furthermore, the condition(s) can only be rated to the extent that the condition(s) limit(s) the performance of duty. The VA, on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning. 5. It is noted the applicant is eligible for transfer to the retired list with entitlement to retired pay in January 2019. In the event she is recalled for active service prior to January 2019, the applicant will undergo a medical examination to determine if she meets the medical/physical fitness standards required to be ordered to active 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) AR20160004028 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004028 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2