BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20160006085 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: 24 April 2018 DOCKET NUMBER: AR20160006085 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: 24 April 2018 DOCKET NUMBER: AR20160006085 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, reconsideration of his request to be retired by reason of physical disability or medically separated. 2. The applicant reiterates his statement contained in his previous request to the Board and also states his injuries and profiles should have kept him from being retained in the Army. He had two permanent profiles that inhibited him from participating in physical training. He further states: * he is not asking for monetary compensation for his service or medical issues * he is requesting to receive military benefits (Tricare and base privileges) for injuries he sustained on active duty orders and deployments * even though he was separated under honorable conditions within the regulations established by the Army, he should have been afforded the opportunity to be medically examined before being discharged * he should have had a medical separation with an honorable discharge * he did not report any medical issues during the demobilization process because he wanted to see his family * he did not want to be held over, so he told the medical staff he was okay * he set himself up for an injustice by telling the medical staff he was okay * he received several permanent profiles with level 2 ratings * he knows that according to Army regulations (AR), he was fit for duty during his military service * he should have been afforded the opportunity to seek medical counsel * he was not afforded the opportunity to explain his medical issues at the time of his separation 3. The applicant provides documents from his previous case. He also provides a follow-up letter and the following additional medical documents: * Health Solutions Chiropractic records * witness letters in support of an appeal of a Department of Veterans Affairs (VA) decision * VA appeal letter with attachments * Dixie Allen counseling records * Northern Utah Counseling records * Tanner Clinic health records * Tanner Clinic lab results * Self-authored VA claims letter (April 2016) * Self-authored letter for VA (July 2016) CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150004842 on 24 November 2015. 2. The applicant provides a new argument that his injuries and profiles should have kept him from being retained in the Army and he should receive military benefits. He provides additional medical documents and statements. This new argument and evidence warrants reconsideration by the Board. 3. He enlisted in the Army National Guard (ARNG) on 6 June 2003 for a period of 8 years. 4. Order 417324, dated 21 June 2004, ordered him to initial active duty for training on 27 September 2004. On 14 January 2005, he was released from active duty for training due to completion of required active service. 5. Utah National Guard, Office of the Adjutant General, Orders 025-315, dated 25 January 2005, ordered him to active duty as a member of his Reserve Component unit in support of Operation Iraqi Freedom (OIF) effective 28 January 2005. A Pre-Deployment Health Assessment completed on 3 February 2005 shows he assessed his health as very good; he had no medical or dental problems. He was not issued a physical profile, required no medical referral, and was found fully deployable without limitations. 6. On 2 May 2006, he was honorably released from active duty due to completion of required active service. His DD Form 214 shows he completed 1 year, 3 months, and 5 days of active service during this period. A Post­ Deployment Health Assessment conducted on 11 April 2006 shows he assessed his health as very good, had no unresolved medical or dental problems that developed during this deployment, was not issued a physical profile, required no medical referral, and had no concerns. 7. Utah National Guard, Office of the Adjutant General, Orders 305-218, dated 1 November 2006, ordered him to active duty for special work under Title 32, U.S. Code, section 501, from 1 November 2006 through 31 December 2006 in Brigham City, UT. 8. Joint Forces Headquarters, Utah Army National Guard Orders 306-016, dated 2 November 2006, attached him to Utah ARNG Recruiting and Retention Command. 9. Utah National Guard, Office of the Adjutant General, Orders 348-234, dated 14 December 2006, ordered him to active duty for special work under Title 32, U.S. Code, section 501, from 1 January 2007 through 30 September 2007 for Recruit Sustainment Program support in Brigham City, UT. 10. A DA Form 3349, dated 9 January 2007, shows he was assigned a permanent physical profile rating of 2 in the upper extremities factor for back pain. Along with that DA Form 3349, the applicant also submitted two other DA Forms 3349, dated February 2007, pertaining to Soldiers other than the applicant. 11. Utah National Guard, Office of the Adjutant General, Orders 177-231, dated 26 June 2007, amended Orders 348-234 to change the ending date of his active duty for special work from 30 September 2007 to 30 June 2007. 12. Utah National Guard, Office of the Adjutant General, Orders 177-039, dated 26 June 2007, ordered him to full-time National Guard duty for the period 1 July 2007 through 30 June 2010 (3 years). 13. A DD Form 2808, dated 19 July 2007, shows he received a medical examination for the purpose of retention. He was diagnosed with bilateral knee pain, assigned a permanent physical profile rating of 2 in the lower extremities factor for knee pain, and was found qualified for service. A DA Form 3349, dated 2 October 2007, shows he again received a permanent physical profile rating of 2 in the lower extremities factor for bilateral knee internal derangement. He was cleared to attend military occupational specialty (MOS) 96B (Intelligence Analyst) training. 14. A DA Form 7349, dated 9 December 2007, reaffirmed his permanent physical profile rating of 2 in the lower extremities factor for his knees and found him fit for duty. 15. Utah National Guard, Office of the Adjutant General, Orders 023-367, dated 23 January 2008, ordered him to active duty as a member of his Reserve Component unit in support of OIF under Title 10, U.S. Code, section 12302, effective 17 February 2008. 16. His DD Form 214 for the period 1 November 2006 through 16 February 2008 shows he was honorably released from active duty in order to continue on active duty in another status. He completed 1 year, 3 months and 16 days of net active service during this period. 17. A Pre-Deployment Health Assessment conducted on 25 February 2008 shows he assessed his health as good, had no medical or dental problems, was assigned a physical profile, had no concerns about his health, required no medical referral, and was found fully deployable. 18. A second Pre-Deployment Health Assessment was conducted on 24 April 2008 and shows he assessed his health as very good, had no medical or dental problems, was assigned a physical profile, had no concerns about his health, required no medical referral, and was found fully deployable. 19. A DA Form 3349, dated 2 June 2008, shows he was assigned permanent physical profile ratings of 2 in the physical capacity or stamina and lower extremities factors for back and knee pain. 20. Utah National Guard, Office of the Adjutant General, Orders 042-025, dated 10 February 2009, ordered him to full-time National Guard duty for the period 6 March 2009 through 30 June 2010. 21. His DD Form 214 for the period 17 February 2008 through 5 March 2009 shows he was honorably released from active duty in order to continue on active duty in another status. He completed 1 year and 19 days of net active service during this period. 22. A DA Form 3349, dated 10 March 2010, shows he was assigned a permanent physical profile rating of 2 in the lower extremities factor for his lower back and knee pain. 23. A Periodic Health Assessment, dated 1 April 2010, shows he was assigned a permanent physical profile rating of 2 in the lower extremities factor, limiting running due to knee pain and restricting sit-ups due to lower back pain. It also shows he underwent surgery on his right wrist, had frequent headaches, had left shoulder pain during strenuous physical activity, and was considered deployable to an austere environment within the next 6 months. 24. His DD Form 214 for the period 6 March 2009 through 14 June 2010 shows he was honorably released from active duty due to completion of required active service. He completed 1 year, 3 months, and 16 days of net active service during this period. 25. His NGB Form 22 shows he was honorably discharged from the ARNG due to ETS on 5 July 2010 under the provisions of National Guard Regulation 600- 200 (Enlisted Personnel Management), paragraph 6-36n. Joint Forces Headquarters, Utah ARNG, Orders 208-017, dated 27 July 2010, discharged him from the ARNG and assigned him to the U.S. Army Reserve Control Group (Individual Ready Reserve) effective 5 July 2010 under the provisions of National Guard Regulation 600-200, paragraph 6-36n. 26. His service records do not contain documentation indicating he: * was issued a permanent physical profile rating of 3 or 4 * suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * was diagnosed with a condition that failed retention standards and/or was unfitting 27. He provided a letter from the VA, dated 21 November 2011, providing a statement of his case, a summary of the law, and evidence concerning his filed Notice of Disagreement with the VA determination of his claim. At the time of the letter, he had been granted the following service-connected disability percentages for the following ailments: * 10 percent for right De Quervain's tenosynovitis (painful condition affecting the tendons on the thumb side of the wrist}, status post-surgery * 10 percent for right wrist scar with residual paresthesias (distorted tingling sensation or numbness)/dysesthesia (abnormal painful sensation such as burning), status post-surgery * 10 percent for right knee patellofemoral pain syndrome (pain in the front of the knee and kneecap) * 10 percent for left knee patellofemoral pain syndrome 28. The applicant provided two subsequent letters from the VA, dated 6 December 2012 and 2 December 2013, both stating he has service-connected disability with a combined disability rating of 80 percent as of 1 December 2011. The rated conditions determined to be service connected are not listed in either letter. 29. In support of his reconsideration the applicant provides more than 70 additional documents in the form of medical records, medical counseling, lab results, VA documents, and self-written letters that show progress notes for marital conflict, post-traumatic stress disorder (PTSD), managing anger, and other medical conditions. These records show his medical history/medications, and VA claims showing deterioration of his medical conditions. 30. In the processing of this case, the Army Review Boards Agency (ARBA) Senior Medical Advisor provided an advisory opinion. He noted: a. A review of the applicant’s electronic medical record (AHLTA) revealed clinical encounters from October 2004 through June 2010. Clinical notes were reviewed from August 2007 through June 2010. Radiology reports were reviewed from December 2004 through March 2009. Laboratory results were reviewed from October 2004 through May 2010. Prescriptions were reviewed from November 2004 through June 2010 (pain and anti-inflammatory meds 2004, 2007, 2009; a single psychoactive medication prescription on 14 June 2010 for Trazadone tabs – one at night for insomnia). The applicant’s paper Service Treatment Record (STR) was not available for review from the National Personnel Records Center (NPRC) at the National Archives and Records Administration (NARA). The applicant’s iPERMS (Interactive Personnel Electronic Records Management System) records were reviewed. b. A Periodic Health Assessment (PHA) on 6 February 2010 shows PULHES (Physical capacity/stamina, Upper extremities, Lower extremities, Hearing/ear, Eyes, Psychiatric (military physical profile)) ratings of 112111, with his height listed at 72 inches and weight at 190 pounds. He was deployable to austere environments within the next 6 months. c. His medical records show a clinic visit on 21 May 2010 for problems sleeping. It also shows the applicant stated that once a week he would wake up with this feeling like his heart stopped and gasping for air. It had been going on for 2-3 years and was becoming more frequent than when it originally started. He was seen by a civilian doctor 3 - 4 years ago and did an overnight study of some sorts and he was told he showed slight symptoms of sleep apnea. He never really followed up after that because of deployments. He does not snore and has no daytime fatigue. He was experiencing persisting left hand pain/paresthesias in region of his Dequervain’s release and desired to follow-up with orthopedics. His depression screening was negative and he had no pain at that time. d. On 10 June 2010, a follow-up clinic visit shows he did an overnight oximetry. He reported that for years he had difficulty falling asleep and experiences lying in bed for several hours prior to sleeping. He had tried Ambien and OTC (over the counter) short term in past. He denied depression and anxiety. He was separating from military service that week. ESS (Epworth Sleepiness Scale) was a 6 and he had a negative depression screening. A reviewed overnight oximetry, desat event index of 3. Time with SP02 (peripheral capillary oxygen saturation) 80 to 90 was at 10.5%, however, a note on report said last hour of desaturation appear to be artifact from the probe coming off and either way this is not a grossly abnormal study and although explained it is not the most sensitive for obstructive sleep apnea (OSA). His symptoms seem to be more of a poor sleep pattern. There was an absence of mod or other organic disorder. He was prescribed a trial of trazadone daily. The impression was insomnia. e. A VA rating decision dated 8 February 2017, shows a proposed reduction of combined evaluation from 80 to 50 percent, with a migraine rating from 30 percent to 0 percent. f. His medical records show a Health Solutions Chiropractic visit dated 23 March, 28 March, and 6 April 2017 with headache, cervicocranial syndrome, segmental and somatic dysfunction of rib cage, and lumbago with sciatica right side. g. A limited review of VA records through the JLV (Joint Legacy Viewer) with 26 listed problems (16 VA-entered) including chronic PTSD, generalized anxiety disorder, insomnia, headache, neck pain, medial epicondylitis, low back pain, right hand synovitis, knee pain, foot pain, pain in right toe(s), hearing loss, bilateral tinnitus, gastroesophageal reflux, tobacco use disorder, obesity, and others. The applicant is VA service-connected at 80 percent overall (PTSD rated at 50 percent, paralysis of musculospinal nerve at 20 percent, limited flexion of the knee at 10 percent, superficial scars at 10 percent, limited motion of wrist at percent, tinnitus at 10 percent, lumbosacral or cervical strain at 10 percent, limited flexion of knee at 10 percent, 2nd degree burns at 0 percent, residuals of foot injury at 0 percent, and migraine headaches at 0 percent). h. The available record does not reasonably support PTSD or another boardable behavioral health condition(s) existed at the time of the applicant’s military service. He had no active behavioral health boardable conditions. His records show a visit for insomnia. i. The applicant met medical retention standards in accordance with (IAW) AR 40-501 (Standards of Medical Fitness). He also met medical retention standards for a history of insomnia, history of left fifth digit fracture, headaches (with stress), right wrist pain/Dequervain’s tenosynovitis, low back pain, bilateral knee pain, right great toe pain, right foot pain, EPTS (existed prior to service) history of penicillin allergy, EPTS pes cavus mild, EPTS history of back problems, EPTS history of tonsillectomy and adenoidectomy, EPTS history of left wrist fracture, EPTS history of right 5th toe fracture, and other physical, medical, dental and/or behavioral conditions IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to his era of service. j. The applicant’s medical conditions were duly considered during medical separation processing. In addition, 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 (PDES) processing in this applicant, i.e., no indication for a medical evaluation board (MEB)/physical evaluation board (PEB). The applicant clearly met medical retention requirements and was worldwide deployable. The applicant electively separated at the end of his term of service with a reentry eligibility code of 1. 31. On 22 December 2017, the applicant was provided a copy of the medical advisory opinion to give him an opportunity to submit a rebuttal and/or comments. He did not respond. REFERENCES: 1. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Once a determination of physical unfitness is made, the physical evaluation board (PEB) rates all disabilities using the VA Schedule for Rating Disabilities (VASRD). 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 individuals in paragraph 3-2. Paragraph 3-1 states these medical conditions and physical defects, individually or in combination, are those that: (a) significantly limit or interfere with the Soldier1s performance of his or her duties, (b) may compromise or aggravate the Soldier's health or well-being if he or she were to remain in military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring), (c) may compromise the health or well-being of other Soldiers, and (d) may prejudice the best interests of the government if the individual were to remain in military service. 2. Title 10, U.S. Code, chapter 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, U.S. Army Human Resources Command, 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 Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. The objectives of the system are to: * maintain an effective and fit military organization 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. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB) * receive a permanent physical profile rating of 3 or 4 and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, U.S. Army Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the PEB. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while veterans who retire based on disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. d. The mere presence of medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army 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. 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. Paragraph 3-4 states 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. a. 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. b. 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. 4. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers. Chapter 6 (Transfer to and from the Retired Reserve) states assignment to the Retired Reserve is authorized for Soldiers who: * are entitled to receive retired pay from the U.S. Armed Forces because of prior military service * have completed a total of 20 years of active or inactive service in the * U.S. Armed Forces * are medically disqualified for active duty resulting from a service­ connected disability * were appointed based on the condition the Soldier immediately apply for transfer to the Retired Reserve * reached the age of 37, completed a minimum of 8 years of qualifying Federal service and served at least 6 months of active duty in time of war or national emergency * completed 10 or more years of active Federal commissioned service * are medically disqualified, not as a result of own misconduct, for retention in an active status or entry on active duty, regardless of the total years of service completed 5. 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 percent. 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 of less than 30 percent. 6. 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. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 7. 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. 8. National Guard Regulation 600-200, chapter 6, prescribes policies and procedures for separation of enlisted Soldiers from the ARNG. Paragraph 6-36n lists expiration of active status commitment in the Selected Reserve as a valid reason for separation from the State ARNG. DISCUSSION: 1. The applicant requests reconsideration of his request for correction of his record to show he received a physical disability retirement or medical separation from the Army. 2. The evidence shows the applicant had a permanent physical profile rating of 2 for his lower back pain and knee pain. Nevertheless, the available evidence does not show he had a permanent physical profile rating of 3 or 4, a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade, or a medical examination that warranted his entry into the PDES. 3. The ARBA Senior Medical Advisor noted that the applicant met medical retention standards IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to him. He further noted the applicant’s medical conditions were duly considered. 4. The ARBA Senior Medical Advisor also noted that 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. The applicant clearly met medical retention requirements and was worldwide deployable. The applicant electively separated at the end of his term of service and he was fully eligible to reenlist. 5. The applicant was honorably released from active duty due to completion of required active service, and further discharged from the Utah Army National Guard due to expiration of his active status commitment in the Selected Reserve. 6. The fact that the VA granted him a service-connected disability rating for various medical conditions after his release from active duty does not prove an error on the part of the Army at the time of his separation. A VA service-connected disability rating does not establish entitlement to a "medical discharge" or "medical retirement" from the Army. The VA awards ratings because a medical condition is "service connected" and affects the individual's civilian employability. Operating under its own policies and regulations, the VA has neither the authority nor the responsibility for determining medical unfitness for military duty. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006085 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006085 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2