BOARD DATE: 26 April 2018 DOCKET NUMBER: AR20160004886 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: 26 April 2018 DOCKET NUMBER: AR20160004886 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: 26 April 2018 DOCKET NUMBER: AR20160004886 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: The applicant defers to counsel for his request, statements, and submission of evidence in support of his request. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests that the Board provides the applicant the following relief: * the applicant's esophagitis, lung, and chronic depression should be found to render him unfit for duty * the applicant's esophagitis, depression, traumatic brain injury (TBI), and pulmonary issues should be found to be combat-related * the applicant's physical evaluation board (PEB) disability rating should be amended to find him 100 percent (%) disabled * the applicant should be allowed to elect participation in the Survivor Benefit Plan (SBP) * the applicant should be promoted to the rank/grade of colonel (COL)/O-6 * the applicant should be granted a personal hearing before the Board * the applicant should be granted any other relief the Board deems fit 2. Counsel states: a. The applicant had been an exemplary Soldier for 25 years when he suffered a motorcycle accident on 6 August 2008. The accident, in combination with a combat tour in Iraq, left him seriously injured and ill, such that he could no longer perform the basic functions essential for an officer to perform. These ailments also prevent him from completing activities of daily living (ADL) and holding a job to provide for his family. However, only two of his injuries were categorized as unfitting for duty and the PEB rendered only a 30% disability rating. He contends that more than just the two injuries were medically unfit for duty, and his actual disability rating was substantially higher than the one assigned by the PEB. Based on the evidence of record and its legal obligation to afford a successful applicant thorough and fitting relief, the Army Board for Correction of Military Records (ABCMR) has sufficient reason to amend the applicant's physical evaluation. b. The applicant returned from Iraq in February 2005, where he was awarded a Bronze Star Medal for his outstanding dedication to duty during Operation Iraqi Freedom (OIF). He was also awarded the Combat Action Badge (CAB) in October 2007 "for actively engaging or being engaged by the enemy." The award was given in response to an incident that occurred in November 2004, in which his convoy, at the time escorting very important persons (VIPs) from the Green Zone back to his base at Camp Victory, was attacked by a vehicle borne improvised explosive device (VBIED). His vehicle was narrowly missed and the driver of the VBIED hit the next vehicle, which was about 15 feet behind the vehicle he was riding in. The explosion was so loud that he lost hearing in both ears for more than 8 hours; he still has ringing in his ears. He was later diagnosed and treated for TBI at Walter Reed Army Medical Center. c. The applicant was involved in a motorcycle accident on 6 August 2008, in which a vehicle failed to yield and collided with him. This accident occurred on the day he completed a mandatory motorcycle safety course. Since this accident, his life and wellness have changed drastically and his ability to perform at levels consistent with his exceptional record has become impaired. d. Despite mounting injuries, the applicant served as a Logistics Maintenance Analyst from July 2008 to July 2009. While physically debilitated, he displayed tremendous mental resolve by continuing to deliver work that merited a recommendation for promotion to COL. During this rating period, he worked on integrating various programs, to include rewriting the Army Test Measurements and Diagnostic Equipment (TMDE) Regulation and the Automatic Reset Induction (ARI) equipment policy, which greatly increased life cycle management effectiveness. e. The applicant's injuries resulted in a variety of diagnosed problems that permanently altered his ability to complete ADLs. During his July 2009 to July 2010 rating period, the physical toll that the accident had taken began to truly manifest itself. While working as a Strategic Plans and Initiatives Branch Action Officer, he had to attend six to twelve medical appointments per week. Due to chronic pain in the hips, back, neck, and shoulders, he was completely incapable of participating in the Army Physical Fitness Test (APFT) and was severely restricted in what he was able to accomplish throughout the work day. Because of his chronic pain, chronic vomiting multiple times a day, and chronic fatigue, he rarely was able to go to work. f. On 30 September 2010, the Medical Evaluation Board (MEB) found that he had incurred a medically unacceptable injury from the accident. The MEB diagnosed the injury as lumbar facet syndrome with muscle spasm/strain and chronic pain. This injury was medically unacceptable pursuant to Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-39. He was subsequently referred to a PEB. g. The PEB convened on 29 June 2011 to consider his conditions. The PEB found his lumbar facet syndrome and associated chronic back pain to have been incurred while entitled to base pay, not of his own intentional misconduct or willful neglect, in the line of duty, and proximately caused by performing his duty. This injury was rated by the PEB as 20% disabling. His wrist injury and wrist osteoarthritis was also found to be medically disabling and incurred in the line of duty while in the performance of his duty. This injury was rated by the PEB as 10% disabling. h. The following injuries and illnesses were found by the PEB to be medically acceptable: chronic cervical strain, obstructive sleep apnea, major depressive disorder, asthma, eosinophilic esophagitis, headache syndrome, bilateral knee arthritis, atypical chest pain, hypertension, left wrist osteoarthritis, bilateral plantar fasciitis, allergic rhinitis, bilateral hearing loss, and bilateral cataracts. i. The applicant was found to be physically unfit and the PEB recommended a disabled rating of 30% along with permanent disability retirement. The PEB disability rating was directly contradicted by the Department of Veterans Affairs (VA) first grant of a 90% disability rating on 24 January 2013, followed by a 100% disability rating on 26 October 2013. j. The applicant continues to suffer from the disabilities and chronic medical issues that have afflicted him since the 2008 motorcycle accident. He can no longer drive a vehicle and he must carpool to and from work. After work, he does not possess the energy to engage in any other physical activities for the day. As such, he is not able to help take care of his family in any way in the house. Extreme sensitivity to either hot or cold weather also prevents him from being outside for any extended period of time. Additionally, he vomits continuously throughout the day five to thirty times. These issues, taken in conjunction with the 21 medications he takes daily (down from more than thirty), extreme physical pain that he constantly suffers as a result of his back, chest, stomach and wrist injuries, have caused him to suffer from chronic depression. These issues come together to severely inhibit the applicant's life in all aspects, including his marriage and the intimacy he can no longer share with his wife. k. The applicant's esophagitis and chronic depression were incurred in the line of duty and preclude him from completing the basic tasks expected of a Soldier and render him medically unfit for duty. The objective standards of fitness that all Soldiers must medically qualify for are enumerated in Army Regulation 40-501. Recurrent or persistent esophagitis, and corresponding esophageal disease, is both a bar to induction and a cause for medical fitness evaluation. Any mood disorder, including chronic depression and anxiety which interferes with effective military performance, requires limitations on duty, or requires recurrent hospital stay is cause for medical fitness evaluation. Chronic depression is also a bar to induction. A Soldier's fitness for duty can be concluded from a single condition or the cumulative effect of multiple conditions. l. The Board must only find by a preponderance of the evidence that his esophagitis and chronic depression rendered him unfit for duty. In accordance with Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), paragraph 3-l(c), a medical evaluation following grave illness or injury is given greater weight, especially when continued service would be harmful to the Soldier's health or prejudice the interests of the Army m. The applicant's medical evaluations, efficiency reports, and testimonial letters all reflect strong support that his esophagitis and chronic depression rendered him medically unfit for duty. He suffers from esophagitis and an undiagnosed esophageal disease as a result of his deployment to Iraq for OIF and being exposed to an open burn pit as part of his duties. n. His condition was dramatically exacerbated by his motorcycle accident. His wife testifies that he continuously coughs and vomits every day throughout the day. He estimates that he vomits five to thirty times every day. This impedes not only his social and family life but also his ability to work functionally and competently. His chronic esophagitis and vomiting are corroborated in his medical record as two of a vast list of chronic issues. o. Shortly after his motorcycle accident, he was plagued with chronic and persistent depression and anxiety as a result of his injuries and the hardships placed on his livelihood. This depression and anxiety eventually manifested into suicidal ideations and plans. Once his plan to commit suicide was uncovered, he was hospitalized from 10 November to 19 November 2009 at the National Naval Medical Center. p. The applicant's chronic depression satisfies all three potential qualifiers for medical unfitness as a result of mood disorder: it interferes with his performance such that it diminishes his ability to focus on daily tasks; it poses extra limitations on his duty by requiring close monitoring of safety risks and behavior; and it has required an extended hospital stay, as well as potentially requiring recurrent hospital stays. Resulting from his chronic depression he was also deemed non-deployable and he does not have access to weapons. q. The applicant's chronic issues are the result of combat operations he was a part of in Iraq. While stationed in Victory Base Complex, Camp Brooklyn, he was within the vicinity of an open burn pit. He was assigned to burn pit duties and was exposed to the smoke approximately twenty hours a day. The fumes, in conjunction with the neurological conditions resulting from the 2008 accident, were a contributing cause of his esophagitis and stomach problems. While in Iraq, he was also exposed to lED blasts. His exposure to combat operations in Iraq resulted in post-traumatic stress disorder (PTSD), a precursor to the chronic depression he currently suffers from. r. It is clear beyond a preponderance of the evidence that his esophagitis and chronic depression both individually and cumulatively render him medically unfit for duty. These chronic conditions pose persistent issues not only to his service career, but also his means of taking care of his family after his separation from service. The PEB erred in categorizing these issues as fitting for duty, and it also erred in only granting him 30% disability. s. When viewing the chronic and persistent issues faced by the applicant, the extreme debilitations precluding his ability to work, and his inability to enjoy quality time with his family, the PEB's decision offends all notions of fairness and justice. He completed more than 29 years of accomplished service and was held in the highest esteem by his commanders and peers alike. After suffering a tragic motorcycle accident causing a litany of injuries and medical complications, he could no longer be the Soldier, the leader, or the husband and father that he had established himself to be. t. The PEB clearly erred in only rendering a disability rating of 30%. He is currently 100% disabled with a Virginia handicapped placard, and his esophagitis, lung, and chronic depression render him unfit for duty as prescribed by Army Regulation 40-501. In the interest of justice, for the integrity of the U.S. Army, and because the Board has good and sufficient evidence to grant the relief requested, it should grant the applicant's request. The Board should also grant any other relief as justice so requires. 3. Counsel provides: * Exhibit 1: Eagle Scout Awards * Exhibit 2: National Honor Society Awards * Exhibit 3: Athletic Awards * Exhibit 4: DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 30 July 1986 * Exhibit 5: Certificate of Training, Command Language Program (German) * Exhibit 6: Big Bend Community College Certificate of Course Completion * Exhibit 7: Letter of Commendation, dated 17 June 1984 * Exhibit 8: Certificate of Achievement, 1st Battalion 54th Infantry Regiment * Exhibit 9: German Marksmanship Badge * Exhibit 10: Army Achievement Medal (AAM), dated 14 November 1985 * Exhibit 11: AAM, dated 31 March 1986 * Exhibit 12: Army Commendation Medal (ARCOM), dated 4 February 1988 * Exhibit 13: Recommendation for Award, ARCOM * Exhibit 14: Army Good Conduct Medal (AGCM) * Exhibit 15: Enlistment/Reenlistment Contract * Exhibit 16: Ranger Challenge Certificate, dated 28 February 1987 * Exhibit 17: Orders to Northern Warfare Training Center * Exhibit 18: Certificate of Appreciation, dated 5 June 1987 * Exhibit 19: Graduation Certificate, Northern Warfare Training Center * Exhibit 20: Certificate of Training, Summer Operations in Northern Areas, Cadet Orientation Course * Exhibit 21: Ranger Challenge, Northwest Brigade Participant, dated 27 February 1988 * Exhibit 22: Certificate of Appreciation from the NCO Association of the United States of America, dated 13 May 1988 * Exhibit 23: Certificate of Appreciation, 4 June 1988 * Exhibit 24: Reserve Officer Training Corps (ROTC) Advanced Camp Cadet Evaluation, dated 26 July 1988 * Exhibit 25: Designation of Distinguished Military Students * Exhibit 26: Honorable Discharge Certificate from the Utah Army National Guard (UTARNG), dated 11 May 1989 * Exhibit 27: Appointment Announcement, dated 21 August 1989 * Exhibit 28: UTARNG Achievement Ribbon, dated 21 July 1989 * Exhibit 29: Officer Evaluation Report (OER) , from 23 June 1989 to 22 June 1990 * Exhibit 30: OER, from 23 June 1990 to 22 June 1991 * Exhibit 31: U.S. Army Field Artillery School Diploma * Exhibit 32: Promotion Notice, dated 11 May 1992 * Exhibit 33: Certificate of Achievement, dated 1 June 1992 * Exhibit 34: AAM, dated 27 June 1992 * Exhibit 35: OER, from 13 November 1991 to 30 June 1992 * Exhibit 36: National Guard State Transfer Documents * Exhibit 37: Letter of Recommendation, CSM R_ A_, Idaho ARNG (IDARNG) * Exhibit 38: Officer Evaluation Report (OER), from 9 December 1992 to * 8 December 1993 * Exhibit 39: OER, from 9 December 1993 to 11 August 1994 * Exhibit 40: AAM, dated 9 September 1994 * Exhibit 41: OER, from 11 October 1994 to 31 July 1995 * Exhibit 42: Notification of Promotion to Captain * Exhibit 43: Service School Academic Evaluation Report, dated 27 March 1996 * Exhibit 44: OER, from 28 March 1996 to 9 November 1996 * Exhibit 45: Certificate of Training, Leader Training Course * Exhibit 46: OER, from 8 November 1996 to 9 November 1997 * Exhibit 47: OER, from 8 November 1997 to - 31 May 1998 * Exhibit 48: AAM, dated 9 January 1998 * Exhibit 49: Letter of Recommendation from LTC R_ K_ * Exhibit 50: OER, from 1 June 1998 to 15 August 1998 * Exhibit 51: Letter of Recommendation from MAJ R_ J_ * Exhibit 52: OER, from 16 August 1998 to 15 August 1999 * Exhibit 53: OER, from 16 August 1999 to 15 August 2000 * Exhibit 54: AAM, dated 23 October 2000 * Exhibit 55: Certificate of Achievement, dated 9 December 2000 * Exhibit 56: ARCOM, dated 23 January 2001 * Exhibit 57: OER, from 16 August 2000 to 15 August 2001 * Exhibit 58: OER, from 16 August 2001 to 15 August 2002 * Exhibit 59: OER, from 16 August 2002 to 15 August 2003 * Exhibit 60: OER, from 16 August 2003 to 15 August 2004 * Exhibit 61: OER, from 15 August 2004 to 15 February 2005 * Exhibit 62: Bronze Star Award Recommendation * Exhibit 63: CAB * Exhibit 64: OER, from 16 February 2005 to 15 October 2005 * Exhibit 65: OER, from 16 October 2005 to 15 May 2006 * Exhibit 66: OER, from 16 May 2006 to 30 August 2006 * Exhibit 67: Meritorious Service Medal (MSM), dated 8 August 2006 * Exhibit 68: OER, from 31 August 2006 to 7 July 2007 * Exhibit 69: OER, from 7 July 2007 - 6 July 2007 * Exhibit 70: MSM, dated 1 August 2008 * Exhibit 71: Police Crash Report, dated 6 August 2008 * Exhibit 72: Motorcycle Safety Course Completion Card * Exhibit 73: OER, from 7 July 2008 to 6 July 2009 * Exhibit 74: OER, from 7 July 2009 to 6 July 2010 * Exhibit 75: Physical Disability Evaluation System (PDES) Commander's Performance and Functional Statement * Exhibit 76: Legion of Merit, dated 13 April 2011 * Exhibit 77: MEB Proceedings * Exhibit 78: PEB Proceedings * Exhibit 79: VA Decision, dated 24 January 2013 * Exhibit 80: VA Rating Decision, dated 26 October 2013 * Exhibit 81: Spouse's Statement * Exhibit 82: Psychiatric MEB Board Addendum * Exhibit 83: Physical profile (draft), dated 25 July 2011 * Exhibit 84: Return of PEB Proceedings, dated 10 January 2012 * Exhibit 85: VA Decision, dated 31 January 2014 * Exhibit 86: Open Burn Pit Registry * Exhibit 87: Chronological Record of Medical Care * Exhibit 88: Psychiatry Discharge Summary 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, a commissioned officer serving in the ARNG, entered a period of active duty on 1 October 2003. At the time, he was serving in the rank of major (MAJ). He was promoted to lieutenant colonel (LTC) on 8 September 2008. 3. The applicant served in Southwest Asia, in support of OIF, from on or about 28 September 2004 through on or about 15 February 2005. He was awarded the Bronze Star Medal for this period of meritorious service. 4. Permanent Orders 292-06, issued by the U.S. Army Human Resources Command (HRC) on 19 October 2007, announced the applicant was awarded the CAB for actively engaging or being engaged by the enemy on 27 November 2004. 5. A DD Form 199, dated 4 January 2011, shows the applicant underwent an informal PEB. The board found him physically unfit for lumbar facet syndrome (claimed as muscle spasms), and right (dominant) wrist osteoarthritis. His disposition and rating was not finalized pending a VA rating decision. 6. The VA provided a proposed combined rating of 20% for his unfitting disabilities on 8 March 2011. 7. A DD Form 199, dated 16 March 2011, shows the PEB provided the applicant a 20% disability rating as a result of the VA's determination. In addition, the PEB recommended separation with severance pay if otherwise qualified. 8. On 11 April 2011, the applicant did not concur with the PEB's findings and demanded a formal hearing. His formal hearing convened on 6 May 2011. On 26 May 2011, he did not concur with the decision resulting from the formal hearing and provided a memorandum requesting reconsideration from his PEB counsel. 9. On 1 June 2011, the PEB requested a one-time reconsideration of the applicant's rating decision provided by the VA. On 23 June 2011, the VA notified the U.S. Army Physical Disability Agency (PDA) that they had completed the applicant's reconsideration and rendered a 30% rating decision (previously 20%). 10. A DD Form 199, dated 29 June 2011, shows a PEB was convened to determine the applicant's fitness for duty. Lumbar facet syndrome (claimed as muscle spasms), and right (dominant) wrist osteoarthritis were determined as his only unfitting conditions by the board. * he was found unfit for military service * recommended a combined rating of 30% * recommended for permanent disability retirement * his disabilities did not result from a combat-related injury 11. A WRAMC memorandum, dated 26 July 2011, shows the applicant failed to make an election on the DD Form 199, dated 29 June 2011. The applicant: * was counseled regarding the PEB findings on 1 July 2011 * was informed his election was due by 11 July 2011 * remained in contact with his PEB Liaison Officer (PEBLO), but did not make an election * was considered to have waived his rights of election 12. It appears the applicant requested another PEB reconsideration. A National Capital Region PEB (NCR PEB) memorandum, dated 10 January 2012, informed the PDA of the following: a. His case was reconsidered in accordance with their memorandum, dated 30 November 2011 (not enclosed). As a result of the reconsideration, the NCR PEB determined no change was warranted. b. The DA Form 3947 (MEB Proceedings), dated 30 September 2010, indicated the condition was medically acceptable. An impartial medical review, dated 3 November 2010, agreed with the finding of the MEB and the Soldier agreed with the Board's findings on 16 November 2010. c. In August 2010, the Soldier's symptoms had improved and he no longer attended therapy or needed medication. In January 2011, Soldier declined psychotherapy and marital counseling. In July 2011, he became depressed due to dissatisfaction with the PEB adjudication, pain, and marital conflicts. The NCR PEB reviewed the Soldier's case file and addendum and determined no change to the Soldier's rating was warranted. 13. Orders 257-0013, issued by U.S. Army Garrison and Fort Belvoir on 13 September 2012, shows the applicant was to be released from assignment and duty because of physical disability. The effective date of his retirement was 5 November 2012, and he was placed on the retired list on 6 November 2012. His percentage of disability is listed on the orders as "Not applicable." 14. Within the applicant's record is a DD Form 2656 (Data for Payment of Retired Personnel) that shows he elected not to participate in the Survivor Benefit Plan (SBP) on 10 October 2012. His spouse concurred with the election in the presence of a notary public on 11 October 2012. 15. A DD Form 214 for the period ending 5 November 2012 confirms the applicant was honorably retired for disability, permanent (enhanced). He was subsequently discharged from the IDARNG this same day. 16. The applicant's record is void of evidence that shows he was considered/selected for promotion to COL. 17. Counsel provides: a. A police crash report that shows the applicant was in vehicle #2 of a traffic accident on 6 August 2008. Vehicle #1 apparently failed to yield to his vehicle while exiting a parking lot. The crash report also shows he was transported by emergency medical services. b. A DA Form 7652 (PDES Commander's Performance and Functional Statement), dated 21 July 2011, which shows the applicant's "Division Chief" stated his performance had been worsening over the past several months. Due to chronic pain, vomiting and drowsiness, he struggled to make it to work. With multiple appointments, almost daily, he was only available one or two days a week. He had a hard time staying awake when he was there due to his sleep apnea and medication that he was taking. c. A DA Form 3947, dated 30 September 2010, which confirms the information provided by the NCR PEB on 10 January 2012. d. A VA decision, dated 24 January 2013, which shows the applicant received a VA/Department of Defense (DoD) joint disability overall rating of 90%. The rating decision consisted of disability percentages granted for his service-connected unfitting and fitting conditions. e. A letter from the applicant's spouse, dated 27 July 2013: (1) Prior to his deployment to Iraq, he only had a few medical issues: his right and left wrists, his right and left knees, both eyes, and hypertension. Since then, their lives turned upside down. He returned from Iraq and started having problems with his stomach, esophagus, lungs, ringing in his ears, and PTSD. While these conditions continued to get worse, he was able to manage them and work long extended hours. He would leave the house at 5:00 a.m. and not return until usually after 7:00 p.m. or later. (2) He was very upbeat about his career and the Army. In fact, her husband was always an overachiever, not only pushing himself, but co-workers and those above and below him. She thought this was pretty amazing, since he had already been in the Army for 23 years at the time. He could go all day and night, get up, and do it again and again. That was until he was involved in a motorcycle accident caused by a young female driver. (3) Their lives changed by the countless number of emergency room visits, hospitalizations, and doctor and physical/occupational/chiropractor appointments. The appointments ranged from 10-15 a week for multiple years. He was (and still is) in excruciating pain from his head to his feet. The days blurred together and she drove him to physical therapy, occupational therapy, a chiropractor (that they finally allowed after more than a year of treatment to no avail), pain management, neurology, pulmonologist, "Gl," orthopedic for his back, neck wrists, behavior health, social worker, hearing, eye, hearing and primary care doctors and therapists. While these can be documented with Tri-Care AHLTA notes, the unseen problems that they experience cannot. (4) Waking up and not being able to get the bathroom, not being able to control his bladder or bowels, continuous coughing and vomiting, and the worry that he might pass away right there in front of her eyes. At night, she is awakened less than 2 hours after going to bed by his uncontrolled coughing and vomiting. This behavior is repeated both during the day and at night every single day. This has been frustrating to her as she repeatedly tells him he was being over medicated. She told this to his doctors as well, until she was so uncomfortable talking to them that she stopped going in with him. His sex drive has become almost nonexistent. This affects both of them tremendously and is another side effect of some of the psychotic drugs he was on and still is. (5) It pains her to see him like this and they constantly fight over how much medication he takes and what it is doing to him. He struggles while awake and while he sleeps. The most common things such as walking, jogging, and lifting weights are now painful and he has stopped doing them because they hurt too much. He does try to do what he can but his arthritis (which is severe) in both hips doesn't allow him to do very much. In fact, he is scheduled to have one of his hips replaced at WRAMC (surgery occurred 13 August 2013, see medical advisory). Because of all his medical problems, he is a risk and cannot have both of them (hips) done together. (6) She often tells him "I want the old Steve back" and his response is "I do too." It is sad that the Army screwed him up with all the medication, but it is deplorable what the VA did to him during his examination and evaluation for benefits. She just wants the best for him, but unfortunately, she thinks it falls on deaf ears. She really wishes that the military services and VA would start to use natural herbs and chiropractic service before using medication known to have more harmful side effects than what the medication is used for. She does not think that she will ever forgive either agency for making a mess out of her husband. f. A VA rating decision, dated 31 January 2014, that shows the applicant's combined disability rating increased from 90% to 100%. g. An Open Burn Pit Registry in which the applicant completed answering the registry's questions on 8 July 2015. The registry shows he replied that at the rank of MAJ, his duties included 20 hours of exposure to smoke and fumes of burn pits during his 4 months and 18 days deployed to Kuwait/Iraq. h. A chronological record of medical care, dated 3 February 2014, consisting of six pages of the applicant's medical conditions, diagnosis, and treatments spanning 7 August 2008 through 3 February 2014. i. A psychiatry discharge summary, dated 19 November 2009, which shows the applicant was diagnosed with the following upon his discharge from a medical facility: * major depressive disorder (MDD), severe, single episode without psychotic features; physical factors affecting his psychiatric condition * chronic musculoskeletal pain * life circumstances, marital and occupational problems, parent child problems, and chronic illness 18. In the processing of this case, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion on 2 August 2017. The advisory official noted and opined the following: a. The applicant received a permanent profile in August 2003 for status post nonunion scaphoid fracture with fusion stable, and he was authorized to use a wrist brace as needed for pushups. b. His pre-deployment health assessment (PDHA) dated 13 September 2004 was unremarkable. An assessment dated 31 January 2005 shows he reported symptoms of chronic cough, back pain, muscle aches, skin rashes, redness of eyes with tearing, still feeling tired after sleeping, frequent indigestion, ringing of ears. He also underwent a PTSD/depression screening that was negative. c. The applicant had another assessment on 9 February 2005 and reported the symptoms listed above. His medical examiner noted he had skin lesions. d. He was seen at a hospital on 6 August 2008 after a motorcycle accident. Notes indicated he flipped over the front of cycle at the speed of 20 miles per hour. He had no loss of consciousness, minor scrapes to right hand and helmet, and pain in the right hand and right biceps. Multiple radiological studies were done, including CT head/brain and CT of the cervical spine and x-rays of the lumbar spine, chest, hand, left forearm, left shoulder, left humerus, and left forearm. e. The applicant's available record reasonably supports PTSD or another boardable behavioral-health condition(s) (MDD) at the time of his service. f. The applicant's MDD did not fail to meet medical retention standards. He had onset of depressive symptoms and later suicidal ideation in the fall of 2009 resulting in a brief psychiatric hospitalization. After discharge, he participated in a partial hospitalization program (PHP) for several months through early 2010 followed by periodic irregular behavioral health (BH) follow up visits through late 2010 and into 2011. He had a brief exacerbation of symptoms in mid-2011 related to the death of his brother and unfavorable MEB/PEB disability determination results with irregular BH follow up afterwards through the end of 2012. There is no significant BH follow up noted from 2013 through 2017. g. The applicant did not meet medical retention standards for lumbar facet syndrome with muscle spasm/strain and chronic pain, right (dominant) wrist osteoarthritis with chronic pain and restricted movement status post four surgeries after scaphoid fracture in accordance with (IAW) Chapter 3, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 that were applicable to the applicant’s era of service. h. He met medical retention standards for chronic cervical strain, obstructive sleep apnea, MDD, asthma, eosinophilic esophagitis and reflux esophagitis, headache syndrome, bilateral knee arthritis, atypical/non-anginal chest pain, hypertension, left wrist osteoarthritis status-post surgery for scaphoid fracture, bilateral plantar fasciitis, allergic rhinitis, bilateral mild sensorineural hearing loss, bilateral subjective tinnitus, bilateral cataracts/presbyopia and other physical, medical and/or behavioral health conditions IAW Chapter 3, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 that were applicable to the applicant’s era of service. Note: Of the 161 listed diagnoses/problems in the electronic medical record, there are none concerning a history of concussion or TBI. Review of the post-motorcycle accident hospital notes indicates “scrapes to the helmet” and no loss of consciousness. i. His medical conditions were duly considered during medical separation processing. j. A review of the available medical documentation was consistent with the previous PEB determination regarding combat-related operations. His disability was not based on injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law. k. His disability did not result from a combat related injury as defined in Title 26, U.S. Code, section 104, and/or for purposes of Title 10, U.S. Code, section 10216(G). l. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character, reason, or PEB disability determination for the discharge in this case. 19. The applicant and his counsel were provided a copy of the advisory opinion on 3 August 2017 to provide them an opportunity to comment and/or submit a rebuttal. His counsel responded on 19 September 2017. a. IAW Title 10, U.S. Code, section 1216a, the PEB is required to take into account all medical conditions, whether individually or collectively that render the member unfit. He requested: (1) that his esophagitis, pulmonary issues, and chronic depression be found as medically unfitting conditions; (2) that his esophagitis, pulmonary issues, depression, and TBI be found to be combat related; and (3) that his total PEB disability rating be increased to 100%. The PEB's refusal to consider conditions that had not been referred by the MEB in the 8 March 2011 request for reconsideration of the proposed DES rating decision, after the PDA returned his file to the PEB in Jan 2011 and then again when Dr. L_ requested a referred MEB with a DA Form 3349 and a Psychiatric MEB Addendum on 25 July 2011, were clear error of law under Title 10, U.S. Code, section 1216a. He exhibits objective indications of chronic disabilities resulting from a combination of illnesses related to his Gulf War service, and he was scheduled for the VA's Gulf War Registry health exam on 11 October 2017. b. Gulf War service is active military duty in the Southwest Asia theater of military operations at any time from 2 August 1990 to present, including veterans who served in OIF and Operation New Dawn. He meets the preconditions for Gulf War Syndrome: (1) his disabilities manifested while on active military service, or to a degree of 10% or more since he served in Iraq from September 2004 to February 2005, and (2) physical examinations and laboratory tests have failed to attribute the disabilities to any known clinical diagnosis. c. Under Title 10, U.S. Code, section 1074, the Secretary of Defense was tasked with ensuring that case definitions of Persian Gulf related illnesses, as well as the PEB criteria used to set disability ratings for members no longer medically qualified for continuation on active duty, were established to permit accurate disability ratings related to a diagnosis of Persian Gulf illnesses. Additionally, under this provision former Persian Gulf veterans who may have been suffering from a Persian Gulf-related illness at the time of discharge or retirement from active duty as a result of the PEB process should be reevaluated and, if appropriate, rerated. d. Pursuant to Title 38, Code of Federal Regulations (CFR), section 3.317, the regulation implementing Title 10, U.S. Code, section 1074, veterans who exhibit objective indications of chronic disability resulting from an undiagnosed illness, or a combination of illnesses, that is manifested by one or more signs or symptoms listed in Title 38, CFR, section 3.317(b), may be presumed to have service connected Gulf War Syndrome. The signs or symptoms under Title 38, CFR, section 3.317(b), include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurological signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; and (11) cardiovascular signs or symptoms. In order to demonstrate a chronic disability due to an undiagnosed illness under Persian Gulf War Syndrome criteria it is necessary to satisfy two preconditions. First, the disability must have become manifest while the member was on active military service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than 31 December 2021. Second, any such disability, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. e. The advisory opinion indicates that the "case file contains no evidence that [the following] diagnoses independently or combined render the Soldier unfit" for his/her assigned duties: MEB diagnosis – chronic cervical strain; obstructive sleep apnea; MDD; asthma; eosinophilic esophagitis and reflux esophagitis; headache syndrome; bilateral knee arthritis; atypical angina chest pain; hypertension; left wrist osteoarthritis; bilateral plantar fasciitis; allergic rhinitis; bilateral mild sensorineural hearing loss/bilateral subjective tinnitus; and bilateral cataracts/presbyopia. While the individual conditions may not be unfitting in and of themselves, the combined symptoms/diagnoses clearly indicate he suffers from Persian Gulf War illness, and the conditions collectively render him unfit. As such, the ABCMR should view these conditions in light of their combined effect as unfitting, and adopt the VA's individual ratings for esophagitis, pulmonary issues, and chronic depression. Pursuant to Haselwander v. McHugh, the Board has the authority to correct the applicant's medical record if it contains an error or injustice, such as here, where the file does contain evidence that the above diagnoses should be rated by DoD as symptoms of Gulf War illness that collectively render him unfit for his assigned duties. f. Under Army Regulation 635-40, a Soldier may be determined unfit as a result of the overall effect of two or more impairments even though each of them, standing alone, would not cause the Soldier to be found unfit because of physical disability. It goes on to state that unfitness due to overall or combined effect may include one or more conditions determined to be unfitting in combination with an independently unfitting condition. The combined effect of the Gulf War illnesses suffered by the applicant (esophagitis, pulmonary issues, and chronic depression) render him unfit, and he should be assigned a disability rating by the ABCMR that corresponds with his VA rating, which found him 100% disabled and unemployable with an effective date of 6 November 2012. His GI physician at Fort Belvoir recently referred him to a tertiary specialist for his severe esophagitis. g. Additionally, his Gulf War illnesses (esophagitis, pulmonary issues, depression, and TBI) were incurred while he was engaged in hazardous service, and should be found to be combat-related disabilities. The enclosed combat action statements from Sergeant First Class G_, Major J_, and Major Y_ clearly corroborate the impact of the explosion that resulted in his TBI. He lost hearing for more than four hours following the explosion and suffers from ongoing vertigo as a result of the TBI incurred on 27 November 2004 in the combat zone in Baghdad, Iraq. h. As indicated in the advisory opinion of 2 August 2017, his assessment dated 31 January 2005 reported the first objective indications of Gulf War illness where he demonstrated chronic cough, back pain, muscle aches, skin rashes, redness of eyes with tearing, still feeling tired after sleeping (fatigue), frequent indigestion, ringing of the ears, and skin lesions. In his medical record, which the advisory opinion recognizes, it is well documented that following his deployment to the Gulf War area, he frequently sought treatment for symptoms related to esophagitis, pulmonary issues, depression, and TBI. The enclosed APFT documents show a steady decline in his run time, which is directly attributable to his post-deployment respiratory issues and muscle aches/joint pains. The motorcycle accident he was involved in on 6 August 2008 exacerbated many of the combat related medical conditions, to include his esophagitis, pulmonary issues, and TBI, for which he was already seeking treatment and added numerous service connected ailments. i. His commander's statement (DA Form 7652) misrepresented his ability to work and failed to provide an accurate assessment of his physical and mental state. As evidence of this, he did not receive any mandatory OERs from 6 July 2009 until his retirement on 5 November 2012. His senior rater refused to complete his portion when the rater, his Branch Chief, A_ S_, tried to complete these OERs. This OER clearly states that the applicant was not assigned any work tasks. Additionally, the advisory opinion's implication that he did not comply with his psychotherapy regimen and that he failed to make an election on the DA Form 199 is not an accurate statement of events. He made every effort to follow the prescribed recommendations of the behavior health physicians and counselors; however, they were not providing the care that he needed. j. Regarding his failure to make an election on the DA Form 199, the applicant was dealing with severe physical ailments, post-traumatic stress syndrome, and chronic depression, not to mention that he was on leave to attend his brother's funeral when the DA Form 199 findings were made available. He was assured by his PEBLO that he would be given additional time to get his DA Form 199 turned in due to his legal representative being at a temporary duty (TDY) location. These issues, compounded by that fact that he was in no state of mind to make decisions for his future, resulted in the default waiver of right to election. k. Prior to and since his retirement, his quality of life has been severely impeded by the combined effect of his disabilities, which should be determined unfitting conditions of Gulf War Illness. Painful joints made exercising practically impossible, and stress from work and his daily commute added to his weight gain. Chronic fatigue plagued him daily and he would be so tired upon returning home from work that he would collapse in a chair, taking an hour or two nap before being able to do anything else. The fatigue, painful joints (exacerbated by his motorcycle accident), esophagitis, and pulmonary issues of unknown etiology are objective indications of Gulf War illness. As a Persian Gulf veteran, under Title 10, U.S. Code, section 1074, his disabilities should reevaluated and rerated as collectively unfitting conditions attributable to Gulf War illness and injuries incurred while on active duty. l. Counsel attached the following with the rebuttal: (1) Memoranda for record (MFRs) that depict the circumstances that led to the applicant being awarded the CAB. A suicide bomber exploded a device behind his vehicle engulfing it with flames on 27 November 2004. No injuries or wounds to the applicant are listed on the MFRs. (2) DA Forms 705 from 5 October 2002 through 2 October 2007 that are authenticated as record tests, and a DA Form 705 from 21 November 2006 through 4 April 2008 that although the test show they were for record, are not authenticated with signatures. The APFT scorecards show his fluctuation in score over time before and after his deployment to OIF. (3) An OER for the period 7 July 2009 through 6 July 2010, which shows his rater signed the form; however, neither the senior rater nor the applicant signed the OER. In addition, this OER is not filed within the applicant's official military personnel file. (4) A medical summary from an official with the Internal Medicine Clinic, Defense Health Agency, dated 9 August 2017: (4a) Patient has numerous musculoskeletal problems that have been treated over several years by pain management, orthopedics, chiropractor, physical therapy, and sports medicine. Many of these issues either resulted from or were exacerbated after being involved in a motorcycle accident in 2009. He was treated for a sacrilitis, hip pain in pain management with Synvisc injections and SI joint injections for treatment of sacrilitis. He continues to have spinal pain at all levels, bilateral hip pain and Sl joint pain. (4b) Patient has a history of gastroesophageal reflux disease, nausea and vomiting. He has had several appointments in the GI clinic with various possible etiologies for symptoms. He had a 24 hour "PH" with impedance testing that demonstrated adequate control of acid and reflux episodes but was discovered to have an “LA Grade C" erosive esophagitis on the "EGD" June 2011. He was given several types of "PPls" which did not control his nausea and vomiting that he experiences daily. He does not respond to antiemetic. His symptoms worsened in 2009 following a motorcycle accident. He may need to have a Nissan fundoplication in the future. (4c) He has had several appointments in the pulmonary clinic for evaluation and treatment of asthma diagnosed in 2009 for shortness of breath and inability to walk 100 meters without stopping and taking a break. He was evaluated for continued random episodes of acute dyspnea, hoarseness and wheezing despite using steroid inhalers and albuterol. It was suspected that his symptoms are exacerbated by "GERO." This problem has not been resolved. (4d) He also has chronic fatigue, which improved when he took Adderall, but this medication can no longer be prescribed by Internal Medicine. Along with fatigue, he is also experiencing vertigo and near syncope episodes. (4e) His prognosis is uncertain and these problems are greatly affecting his life and his employability. All of these problems are well documented. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 4-2d, states "AGR officers selected by a mandatory board will be promoted provided they are assigned/attached to a position in a higher grade. The DOR will be the date the officer attained maximum time in grade or the date on which assigned/attached to a position in a higher grade, whichever is earlier." a. AGR promotions are subject to limitations of controlled grades per Title 10, U.S. Code, section 12011. Paragraph a(1) of Title 10, U.S. Code, section 12011 states, "Of the total number of members of a Reserve Component who are serving on full time Reserve Component duty at the end of any fiscal year, the number of those members who may be serving in each of the grades of major, LTC, and COL may not, as of the end of the Fiscal year, exceed the number determined (by the table in the section of law)." b. Table 2-1 specifies that a LTC must have a minimum of 3 years, up to a maximum of 5 years (subject to the needs of the Army), time in grade, for promotion consideration to COL. c. Paragraph 3-19 (Promotion Reconsideration Boards) states officers and warrant officers who have either failed selection for promotion or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board (PAB) or special selection board (SSB), if appropriate. This document also provides that PABs/SSBs will convene to correct/prevent an injustice to officers or former officers who were eligible for promotion but whose records, through error, were not submitted to a mandatory promotion selection board for consideration or contained a material error when reviewed by the mandatory selection board. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides guidance on the various medical conditions and physical defects that may render a Soldier unfit for further military service, and that fall below the standards required for service. These medical conditions and physical defects, individually or in combination, are those that: significantly limit or interfere with the Soldier's performance of their duties; may compromise or aggravate the Soldier's health or well-being if the Soldier were to remain in the military service; may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual Soldier were to remain in the military service. b. Paragraph 3-4 (General Policy) provides that possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the Service. Physicians are responsible for referring Soldiers with conditions listed below to a medical evaluation board (MEB). It is critical that MEBs are complete and reflect all of the Soldier's medical problems and physical limitations. The PEB will make the determination of fitness or unfitness. The PEB, under the authority of the U.S. Army Physical Disability Agency, will consider the results of the MEB, as well as the requirements of the Soldier's MOS, in determining fitness. c. Chapter 7 (Physical Profiling), paragraph 7-11a(3)(d), provides that the DA Form 3349 will specify the physical profile type – temporary or permanent. If the physical profile is permanent, the profiling officer must assess whether the Soldier meets the retention standards of Army Regulation 40-501, chapter 3. Those Soldiers who meet retention standards but have at least a permanent "3" or "4" PULHES serial will be referred to an MOS Medical Review Board in accordance with Army Regulation 600-60 (Physical Performance Evaluation System), unless waived by the MOS Medical Review Board convening authority. Those Soldiers who do not meet retention standards must be referred to an MEB in accordance with chapter 3. 4. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. Chapter 7 provides that SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. a. Paragraph 7-2 states SSBs may be convened under 10 U.S. Code section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters Department of the Army (HQDA) discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error (SSB required). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. A material error is defined as being of such nature that in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion. Reconsideration may also be granted when material information was missing from the officer's file when seen by a promotion board. 5. Army Regulation 635-40, in effect at the time, established the Army Physical Disability Evaluation System (PDES) and set 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 office, grade, rank, or rating. a. Paragraph 1-1 (Purpose) provides that the Army PDES was established under the provisions of Title 10 U.S. Code, section 61 and Department of Defense Directive (DODD) 1332.18 (Disability Evaluation System (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, this regulation provides for disposition of the Soldier according to applicable laws and regulations. The objectives of the PDES are to: * maintain effective and fit military organizations with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Paragraph 2-10 (Board Elements) provides that the Army PDES consists of MEBs, which are a function of the Army Medical Department (AMEDD), PEB conducted under the auspices of the USAPDA, and case reviews, when applicable, as conducted by the USAPDA. c. Paragraph 3-1 (Standards of Unfitness because of Physical Disability) 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. Paragraph 3-2b (Presumptions – Processing for Separation or Retirement from Active Service) provides 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. e. Paragraph 3-4 (LOD Decisions) provides that under the laws governing the Army PDES, Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training (IDT) and (2) the disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. f. Paragraph 3-5 (Use of the VA Schedule for Rating Disabilities (VASRD)) provides that only the unfitting conditions or defects and those that contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. g. Chapter 4 (Eligibility for Disability Evaluation) provides that the following individuals/entities may refer a Soldier into the Army PDES: (1) The Commander, U.S. Army Human Resources Command (HRC), upon the recommendation of The Surgeon General, may refer a Soldier to the responsible medical treatment facility (MTF) for medical evaluation when a question arises as to the Soldier's ability to perform the duties of his or her office, grade, rank, or rating because of physical disability. (2) Commanders of MTFs who are treating Soldiers in an assigned, attached, or outpatient status may initiate action to evaluate the Soldier's physical ability to perform the duties of their office, grade, rank, or rating. (3) When a commander believes that a Soldier of their command is unable to perform the duties of their office, grade, rank, or rating because of physical disability, the commander will refer the Soldier to the responsible MTF for evaluation. The request for evaluation will be in writing and will state the commander's reasons for believing that the Soldier is unable to perform his or her duties. h. Paragraph 4-10 (MEB) provides that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation 40–501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. i. Paragraph 4-17 (PEB) provides that PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army. The PEB is not a statutory board. Its findings and recommendations may be revised. It is a fact-finding board for the following: (1) investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board; (2) evaluating the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; (3) providing a full and fair hearing for the Soldier as required by under Title 10 U.S. Code, section 1214; and (4) making findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability (Title 10 U.S. Code, section 61). j. Chapter 8 (Reserve Components), paragraph 8-2 (Eligibility), provides that Reserve Component Soldiers are eligible for disability processing from an injury determined to be the proximate result of performing annual training, active duty special work, active duty for training, or inactive duty training. k. Paragraph 8-9 (Disposition) provides that a Soldier not on extended active duty who is unfit because of physical disability: (1) may be permanently retired or have his or her name placed on the TDRL, if: he or she has at least 20 years of service; his or her disability is rated at 30 percent or more; or his or her disability occurred in the line of duty and was the proximate result of performing active duty or IDT; (2) may be separated with severance pay if: his or her disability is rated at less than 30 percent; he or she has less than 20 years of service; or his or her disability occurred in the line of duty and was the proximate result of performing active duty or IDT; (3) may forfeit severance pay; be transferred to the Retired Reserve; and receive under the provisions of Title 10 U.S. Code, section 12731 non-disability retired pay at age 60, if at least 20 qualifying years of service for retirement have been completed and transfer to the retired Reserve is requested. According to the provisions of Title 10 U.S. Code, sections 1209 and 1213, all rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve. Disability severance pay (unlike readjustment and separation pay) cannot be repaid for the purposes of receiving retired pay; and (4) will be separated without benefits when: the unfitting condition results from injury which is due to intentional misconduct or willful neglect; the disability was incurred during a period of unauthorized absence; or the disability was not incurred or aggravated as the proximate result of performing duty as specified in paragraph 8-2. l. From the time a Soldier receives a permanent profile referring them to a MEB until the time the DES process is completed (including a decision on any appeal) or the Soldier is returned to duty, the Soldier is eligible for promotion consideration, promotion selection, and promotion. 6. National Guard Regulation 600-5 (The Active Guard Reserve (AGR) Program Title 32, Full Time National Guard Duty (FTNGD) Management provides the Active Service management Board (ASMB) is used in the ARNG to shape the AGR force. This board provides a life cycle management tool of career progression and management of qualified AGR Soldiers. The ASMB is based on the needs of the Army, and service in the AGR program must be based on the AGR requirements of the ARNG. States will conduct a board as directed by the DARNG or The Adjutant General on an as-needed basis, not to exceed one board per calendar year. Standby boards are prohibited. States that exceed their controlled grade allocation will be mandated to hold a board each year until they no longer exceed their controlled grade allocation. 7. Title 10 U.S. Code, section 61 provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, HRC, is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DoDD 1332.18 and Army Regulation 635-40. 8. 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 error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the 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. These two government agencies operate under different policies. 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. 9. Public Law 92-425, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. Elections are made by category, not by name. An election to decline to participate in the SBP must be made prior to the effective date of retirement or else coverage automatically defaults to full spouse (or child only, if applicable) coverage. An election, once made, was irrevocable except in certain circumstances enacted by special law during "open seasons." 10. Public Law 99-145, enacted 8 November 1985 but effective 1 March 1986, required a spouse’s written concurrence for a retiring member’s election that provides less than the maximum spouse coverage. DISCUSSION: 1. Counsel requests that the Board provides the applicant the following relief: * the applicant's esophagitis, lung, and chronic depression should be found to render him unfit for duty * his esophagitis, depression, TBI, and pulmonary issues should be found to be combat-related * his PEB disability rating should be amended to 100% disabled * he should be allowed to elect participation in the SBP * he should be promoted to the rank/grade of COL/O-6 * he should be granted a personal hearing before the Board * he should be granted any other relief the Board deems fit 2. The applicant served in OIF from September 2004 through February 2005. His PDHA listed his health as unremarkable prior to his deployment. 3. The applicant was awarded the CAB for being engaged by the enemy in Iraq on 27 November 2007 in which a VBIED was detonated behind his vehicle. 4. The applicant had two more assessments completed prior to re-deployment in which he reported symptoms of chronic cough, back pain, muscle aches, skin rashes, redness of eyes with tearing, still feeling tired after sleeping, frequent indigestion, ringing of ears, and skin lesions. He also underwent a PTSD/depression screening that was negative. 5. A VA open burn pit registry shows he responded that he was subjected to possibly toxic fumes and smoke for 20 hours a day while deployed. 6. The applicant was involved in a vehicle accident on 6 August 2008. The medical report shows he flipped over the front of cycle at the speed of 20 miles per hour. He had no loss of consciousness, minor scrapes to right hand and helmet, pain in the right hand and right biceps. Multiple radiological studies were completed, including CT head/brain and CT of the cervical spine; x-rays of the lumbar spine, chest, hand, left forearm, left shoulder, left humerus and left forearm. The applicant contends his overall condition worsened as a result of the vehicle accident. 7. The applicant was entered into the PDES process in 2010 when his medical condition was referred to an MEB. He was subsequently referred to a PEB in which the board found him physically unfit for lumbar facet syndrome and right wrist osteoarthritis. The VA provided the PEB an initial disability rating of 20% for his unfitting conditions. The PEB recommended that he be separated with severance pay and a 20% rating. 8. The applicant did not concur with the PEB's decision and demanded a formal hearing that was granted. The VA reevaluated his case and determined his two unfitting conditions would receive a combined rating of 30%. The PEB recommended that he would receive the 30% disability rating and be permanently retired for his disabilities. The PEB noted his unfitting conditions were not combat related. 9. After having his PEB findings reconsidered, the applicant's ratings were not changed and were finalized by the PDA. Title 10, U.S. Code, section 1201, provides that physical disability retirement for service members requires a disability rating of at least 30%. The applicant was accordingly honorably discharged and placed on the permanent disability retired list. 10. The VA provided the applicant a 100% service-connected combined disability rating for his fitting and unfitting medical conditions. Operating under different laws and policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability. The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating. 11. The ARBA Senior Medical Advisor opined, after a thorough review of the applicant's medical records, that there is no reason to change the PEB disability determination in this case by adding more unfitting conditions and labeling them as combat related. 12. The applicant's record is void of evidence that shows he was considered and selected for promotion to COL during the PDES process. AGR officers must be selected by a mandatory board in order to receive a promotion, provided they are assigned/attached to a position in a higher grade. No evidence was provided that shows he was erroneously not considered for promotion through administrative error. The governing regulations provide that an officer will not be considered or reconsidered for promotion by an SSB unless there was an erroneous non-consideration or material error that existed in the record at the time of consideration. His consideration status is unknown. 13. The applicant applied for retired pay by submitting a DD Form 2656. He elected not to participate in the SBP, and his spouse concurred with the decision on 11 October 2012. Accordingly, SBP payments were not deducted from his retirement pay. An election, once made, is irrevocable except in certain circumstances enacted by special law during open seasons. 14. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160004886 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004886 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2