BOARD DATE: 27 February 2018 DOCKET NUMBER: AR20160004132 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. 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: 27 February 2018 DOCKET NUMBER: AR20160004132 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 27 February 2018 DOCKET NUMBER: AR20160004132 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his records to show he was retired due to physical disability instead of being transferred to the Retired Reserve. 2. The applicant states: * he did not pass a deployment physical and was barred from reenlisting; at that time, he had completed 17 years of active service in the Active Guard Reserve (AGR) and 11 years of inactive service in the U.S. Army Reserve (USAR) * he was physically qualified for service when he began his military career in 1977; he ended his military career unfit, as determined by a physical evaluation board (PEB) * his DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 12 October 2004, shows his asthma, chronic low back pain, and arthralgia (knees, shoulders, feet) were medically unacceptable conditions * his DA Form 3947 does not show a disc bulge at the L3-4 and L4-5, which caused sciatica down his left leg and anterolisthesis (forward shifting of the vertebral column of 4.7mm) * his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with completing 16 years, 11 months, and 23 days of active service, which is over 8 years of active service, and 11 years, 6 months, and 5 days of USAR service * he left the military with a 60 percent (%) disability rating that is now rated at 80%; he should have been able to receive a medical retirement before age 60 * his disability rating increased from 60% in 2005 to 80% in 2007 3. The applicant provides a medical board summary dated 17 July 1997 and a memorandum from the U.S. Army Human Resources Command (HRC), dated 12 May 2005, subject: Early Release from Active Duty In-Lieu of Disability Severance Pay for Non-Disability Retired Pay at Age 60 – [applicant's name]. 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 was born on 1 April 1957. He enlisted in the USAR on 12 February 1977 and entered active duty in an AGR status on 30 September 1989. 3. A medical board summary, dated 17 July 1997, shows the applicant's chief complaint was low back pain with multiple other joints pain. This document also shows he was diagnosed with: * mechanical low back pain * left shoulder impingement syndrome * bilateral patellofemoral syndrome * recurrent bilateral bunions with DJD of the first metatarsophalangeal joint * arthralgias of the bilateral elbows * anterolateral soft tissue and bony impingement of the bilateral ankles 4. On 9 December 1998, an MEB diagnosed the applicant with the following six medical conditions that were deemed medically acceptable in accordance with Army Regulation 40-501 (Standards of Medical Fitness): * mechanical low back pain without neurologic component * lateral epicondylitis, bilateral elbows * recurrent bilateral bunions with degenerative with degenerative joint disease of the MTP joint * bilateral patellofemoral pain syndrome * bilateral shoulder pa.in with some degenerative joint disease of the left AC joint * degenerative joint disease, bilateral ankles 5. The MEB recommended the applicant's referral to a PEB. 6. On 6 January 1999, a PEB found the applicant fit for duty and recommended his return to duty as fit. The applicant concurred with the PEB findings and conclusions on 8 January 1999. 7. On 12 October 2004, an MEB diagnosed the applicant with the following medical conditions that were deemed medically unacceptable for retention in accordance with Army Regulation 40-501: * asthma * chronic low back pain * arthralgias – knees, shoulders, feet 8. The MEB recommended his referral to a PEB. 9. On 22 November 2004, an informal PEB found the applicant unfit to perform the duties of his rank and specialty due to chronic low back pain (rated at 10% under the Veterans Affairs Schedule for Rating Disabilities (VASRD)) with a history of a fall and progressive increase in pain to the degree that he could no longer perform physical training. The PEB found asthma and arthralgias not unfitting and, therefore, not rated. 10. The PEB also informed the applicant of the following: It appears you may qualify for retired pay for non-regular service. If so, you have the option of accepting disability severance pay and forfeiting your Reserve retirement or you may be placed in an inactive Reserve status and receive Reserve retired pay at the age of 60 by forfeiting your disability severance pay. If you elect transfer to the inactive Reserve status list for the purpose of receiving Reserve retired pay at age 60, no disability percentage will be computed. UP Chapter 61, Title 10 U.S.C. 1209, you may not receive both disability benefits and retired pay for non- regular service. Soldiers who are not entitled to disability benefits who have at least 20 qualifying years for Reserve retirement may also elect to transfer to inactive Reserve status in lieu of being separated UP Chapter 61, Title 10 U.S.C. 11. On 13 December 2004, the applicant indicated he did not concur with the PEB findings and recommendations and demanded a formal hearing. 12. There is no evidence in the applicant's available records showing that a formal PEB was conducted. 13. A memorandum issued by HRC, Reserve Components Personnel Support Service Branch, dated 12 May 2005, shows the applicant requested and was approved for early release from active duty (REFRAD) in lieu of disability severance pay. The memorandum also shows that because he had attained more than 20 years of qualifying service for retirement and had been issued an Eligibility for Retired Pay at Age 60 (20-Year Letter), HRC instructed the servicing transition center to issue orders transferring the applicant to the USAR Control Group (Retired Reserve) instead of discharge orders. 14. The applicant's DD Form 214 for the period ending 9 August 2005 confirms he was released from active duty and transferred to the Retired Reserve on 9 August 2005. 15. The applicant was placed on the Retired List on 1 April 2017, upon reaching age 60. 16. On 23 May 2017, the Army Review Boards Agency's (ARBA) Case Management Division forwarded a letter to the applicant requesting additional medical documentation supporting his stated issues. The applicant did not provide the requested additional medical documentation. 17. During the processing of this case, a medical advisory opinion was obtained from the ARBA Senior Medical Advisor. The medical advisor states that after a review of the applicant's electronic medical record (AHLTA), Interactive Personnel Electronic Records Management System (iPERMS) records, and Department of Veterans Affairs (VA) records, he concluded the following: a. The applicant is currently receiving service-connected disability compensation from the VA rated at 80%. b. The applicant did not meet medical retention standards for chronic low back pain, asthma, and arthralgia in accordance with Army Regulation 40-501 and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation); however, the PEB found him unfit for chronic low back pain but found him fit for asthma and arthralgia. c. The applicant met medical retention standards for chronic kidney (renal) insufficiency, right shoulder pain, chronic left elbow pain, chronic left knee pain, abnormal liver function tests, prostate enlargement, bilateral decreased visual acuity, dyslipidemia, and other physical, medical, and/or behavioral health conditions in accordance with AR 40-501 and following the provisions set forth in Army Regulation 635-40 that were applicable to the applicant’s era of service. d. The applicant’s medical conditions were duly considered during his medical separation processing. e. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character of service, reason for separation, and/or disability determination or retirement status in this case. 18. The medical advisory opinion was provided to the applicant to allow him the opportunity to provide additional evidence, comments, or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provides for MEB's which 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 qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it 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. a. Paragraph 3-1 provides that 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. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VASRD. The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 2. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement.) Chapter 3 provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for the individual in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination: * significantly limit or interfere with the Soldier's performance of duties * may compromise or aggravate the Soldier's health or well-being if the Soldier remains in the military – this may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring * may compromise the health or well-being of other Soldiers * may prejudice the best interests of the government if the individuals were to remain in the military service 3. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 4. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The 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. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 5. The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. It contains a list of codes that correlate injuries or illnesses to percentage ratings that estimate the reduction in earning capacity resulting from the disability. The degree of severity is expressed as a percentage rating that determines the amount of monthly compensation. DISCUSSION: 1. The applicant contends his records should be corrected to show an increase in his final percentage of disability rating in order to qualify for a medical disability retirement. 2. The evidence shows he underwent an MEB that diagnosed him with asthma, chronic low back pain, and arthralgias – knees, shoulders, and feet, which did not meet retention standards. The MEB recommended his referral to a PEB. 3. An informal PEB reviewed his diagnoses and found him physically unfit due to chronic low back pain, rated 10% disabling. The PEB found asthma and arthralgias not unfitting and, therefore, not ratable. 4. The PEB also informed him that because he was awarded a disability rating of less than 30%, and because he had at least 20 qualifying years for Reserve retirement, he had the option of accepting disability severance pay and forfeiting his Reserve retirement or he could elect to be placed in an inactive Reserve status and receive Reserve retired pay upon attaining age 60. He elected transfer to the Retired Reserve. Accordingly, he was transferred to the Retired Reserve on 9 August 2005. 5. It is acknowledged that he is currently receiving service-connected disability compensation from the VA rated at 80%; however, the fact that the VA gave other medical conditions a rating does not mean any of those conditions were misdiagnosed by the Army. The medical advisor found no evidence that would support a change to the disability determination or retirement status in this case. 6. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings in cases where a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 7. Based on the foregoing, it appears the applicant’s separation and transfer to the Retired Reserve was accomplished in compliance with laws and regulations. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160004132 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004132 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2