BOARD DATE: 15 March 2018 DOCKET NUMBER: AR20160004863 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: 15 March 2018 DOCKET NUMBER: AR20160004863 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 The applicant, in effect, requests his honorable discharge from the U.S. Army Reserve (USAR) be rescinded and that he be referred to the Integrated Disability Evaluation System (IDES)) for evaluation and possible medical discharge. 2. The applicant states he was never afforded the opportunity to have his medical condition adjudicated by a medical board because his commander refused to allow him to extend his enlistment until a decision was made. He received an honorable discharge but should have been allowed to extend long enough to get a decision whether or not he would be medically discharged or be allowed to change his military occupational specialty (MOS). Since he was never given that opportunity, he respectfully requests reconsideration of his case at this time for possible medical separation. After 21 years of service, he has received nothing. 3. The applicant provides a copy of his DA Form 3349 (Physical Profile) and an MOS Administrative Retention Review (MAR2) memorandum. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 29 December 1992. He completed his initial entry training and was awarded MOS 11B (Infantryman). 3. A DD Form 214 (Certificate or Release or Discharge from Active Duty) for the period ending 7 January 2003 shows he was released from active duty and transferred to the USAR. 4. While a member of the USAR, the applicant entered a period of active duty on 19 August 2005. He was released from active duty on 27 October 2006 and returned to the control of the USAR. His DD Form 214 shows his MOS during this period of service was listed as 11B. 5. Orders 07-045-00008, issued by Headquarters, 63rd Regional Readiness Command, on 14 February 2007, show the applicant was awarded MOS 31B (Military Police) as his primary MOS (PMOS) effective 14 February 2007. He was awarded MOS 11B as his secondary MOS (SMOS) effective the same date. 6. A Periodic Health Assessment (PHA) results sheet, dated 11 August 2008, shows the applicant was diagnosed with hearing loss. The medical examiner determined he should be evaluated for retention in a non-noise hazardous MOS. 7. A DA Form 3349 (Physical Profile) shows the applicant was evaluated by a medical doctor on 9 June 2010 and was placed under a permanent physical profile, with a serial factor of "3" in the "H (Hearing)" factor of his PULHES, the six factors comprising the Military Physical Profile Serial System. The profile form shows he met retention standards in accordance with (IAW) Army Regulation 40-501 (Standards of Medical Fitness); however, the profiling officer annotated his need to be referred to an MOS Medical Retention Board (MMRB, later referred to as a MAR2). His only limitation was to avoid exposure to loud environmental noise. 8. The applicant received a MAR2 memorandum, dated 4 April 2011, which notified him that he met medical retention standards for continued service in the Army. However, he still had to be evaluated on his ability to perform his current specialty (31B) in a world-wide environment. He was instructed to: * complete a checklist, include his self-authored statement and a commander's statement * return the above documents within 30 days (4 May 2011) to an email address provided 9. Orders 12-045-00015, issued by Headquarters, 63rd Regional Support Command, on 14 February 2012, show the applicant's MOS of 31B was withdrawn and MOS 11B was awarded as his PMOS, both actions effective 10 February 2012. 10. The applicant’s record is void of evidence that shows he was referred to the IDES for evaluation by a medical evaluation board (MEB) or physical evaluation board (PEB). 11. In the processing of this case, an advisory opinion was obtained on 6 February 2018 from the Army Review Boards Agency (ARBA) Senior Medical Advisor. The advisory official noted and opined: a. The applicant met medical retention standards for hearing loss IAW Army Regulation 40-501, chapter 3, and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. b. The applicant’s medical conditions were duly considered during medical separation processing. c. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. There was no indication for physical disability evaluation system processing of this applicant. The applicant’s hearing acuity meets medical retention standards IAW Army Regulation 40-501. The applicant was MOS reclassified after MAR2 processing. 12. The applicant was provided a copy of the advisory opinion on 13 February 2018 to allow him an opportunity to comment and/or submit a rebuttal. However, he did not respond. REFERENCES: 1. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. Paragraph 3-10 (Hearing) provides Soldiers incapable of performing duty with a hearing aid will be referred for MEB processing. 2. Army Regulation 635-40 establishes the Army Disability Evaluation System (DES) in accordance with Title 10, U.S. Code, Chapter 61 and the Department of Defense Instruction 1332.18 (DES). It 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. If a Soldier is found unfit because of physical disability to reasonably perform their duties it provides for the disposition of the Soldier according to applicable laws and regulations. a. Paragraph 3-2b (Presumptions – Processing for Separation or Retirement from Active Service) provides, in pertinent part, that disability compensation is not an entitlement acquired by reason of 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 military service. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. The presumption of fitness may be overcome if the evidence establishes that: (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. b. Public law defines physical DES as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the armed forces. It is comprised of MEBs, PEBs, counseling of Soldiers, and mechanism for final disposition. c. A Soldier may not be discharged or released from active duty because of a disability until they have made a claim for compensation, pension or hospitalization with the VA or signed a statement that their right to make such a claim has been explained, or have refused to sign such a statement. d. The DES consists of three systems: (1) Legacy DES for cases referred under the duty-related process, the PEB determines fitness and determines the disability rating percentages using the VA Schedule for Rating Disabilities (VARSD). (2) Integrated DES (IDES) features a single set of disability medical examinations that may assist the DES in identifying conditions that may render the Soldier unfit. A single set of disability ratings provided by the VA for use by both departments. The DES applies these ratings to the conditions it determines to be unfitting and compensable. The Soldier receives preliminary ratings for their VA compensation before the Soldier is separated or retired for disability. (3) Expedited DES is a voluntary process for Soldiers unfit for catastrophic injuries or diseases in which USAPDA may permanently retire the Soldier without referral to the PEB based on the medical treatment facility (MTF) NARSUM. e. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile in accordance with Army Regulation 40-501 and the profile contains a numerical designator of P3/P4 in any of the serial factors for a condition that appears to not meet medical retention standards. A Soldier must be assigned a P3/P4 profile to refer a Soldier to the DES. (2) A Soldiers is referred to the DES based on the outcome of a Military Occupational Specialty Administrative Retention Review (MAR2) evaluation. f. An MEB is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per AR 40-501. An MEB may determine that a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. The MEB must not provide conclusions or recommendations regarding fitness determinations. (1) Upon referral into the DES, the physician approving the Soldier P3/P4 profile will initiate the VA Form 21-0819 (VA/Joint Disability Evaluation Board Claim) and send the form to the MTF commander. (2) The Soldier will be assigned a PEB liaison officer (PEBLO) who will provide a general overview of the DES process. (3) The Soldier will have the opportunity to claim conditions on the VA Form 21-0819. After the VA Form 21-0819 is submitted, the Soldier may also claim additional conditions, but the VA will not evaluate the added claimed conditions until after separation unless the PEB refers the condition for further VA or MEB evaluation before issuing a final fitness determination, or if the MEB approval authority concludes that adding a new medical condition is necessary. g. The PEB determines fitness for purposes of a Soldier's retention, separation or retirement. (1) All cases will be initially adjudicated by the Informal PEB. The Informal PEB conducts a documentary review of the case file without the presence of the Soldier to make an initial decision on the Soldier’s fitness for continued service. The decision will be document on a DA Form 199. (2) With the exception of cases adjudicated under the legacy DES, if the initial decision of the PEB is that the Soldier is unfit, the PEB president will request preliminary VA ratings for each condition the PEB found to be unfitting. The PEB will apply the VA disability rating percentages to the conditions determined to be compensable by the PEB. (3) The Soldier can accept the Informal PEB decision thereby waiving his or her right to a formal hearing. The Soldier can nonconcur with the Informal PEB decision and demand or request a formal hearing. Accept or request reconsideration of the VA preliminary ratings. The VA will only reconsider when there is new medical evidence or sufficient justification of an error to warrant reconsideration. h. The USAPDA will review the PEB before the PEB recommendations and finding are approved for or by the Secretary of the Army (SECARMY) or higher authority, as applicable. The USAPDA has the authority to approve disability cases for the SECARMY and issues disposition instructions. DISCUSSION: 1. The applicant requests that his honorable discharge for expiration term of service be rescinded and that he be referred to the IDES for possible medical discharge due to physical disability. 2. The applicant was honorably discharged from the USAR upon his expiration of term of service. He contends he was not allowed to extend his enlistment to see if he should change his MOS or be medically discharged. 3. The applicant was awarded PMOS 11B after completing IET. He was later awarded PMOS 31B on 14 February 2007. 4. The applicant received a permanent profile for hearing loss on 13 July 2010. The profiling officer annotated that he met medical retention standards IAW Army Regulation 40-501, but noted he needed referral into the MAR2 process. 5. The evidence of record shows the applicant received a MAR2 memorandum on 4 April 2011, in which he was notified that he met medical retention standards for continued service in the Army. The MAR2 notification confirms he was medically evaluated prior to being discharged and not further referred into the IDES process. In addition, he was informed that his ability to perform in PMOS 31B was still to be evaluated. 6. His PMOS was changed back to 11B on 10 February 2012. There is no evidence within the applicant’s record that clarifies whether or not his PMOS was changed back to 11B IAW the MOS evaluation prescribed by the MAR2 memorandum; however, his PMOS was changed. 7. The ARBA Senior Medical Advisor opined, after a thorough review of his medical records, that there is no evidence of medical concerns that required his referral to IDES. BOARD DATE: 15 March 2018 DOCKET NUMBER: AR20160004863 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160004863 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004863 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2