BOARD DATE: 5 April 2018 DOCKET NUMBER: AR20160006728 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: 5 April 2018 DOCKET NUMBER: AR20160006728 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant, in effect, requests her retirement orders be rescinded and she be referred to the Integrated Disability Evaluation System (IDES) for possible discharge or retirement due to physical disability. 2. The applicant states: a. She believes she would have been medically separated instead of retired. She was under care from her first deployment. She continued medical care throughout her second deployment. However, the Army National Guard (ARNG) refused to medically hold her and said she just needed to retire. b. She provided medical records stating she should have been medically separated. She actively pursued this case with her ARNG unit and she also contacted the Adjutant General and State representative. However, she received no response from them. 3. In a self-authored letter, the applicant states, in effect: a. She was under medical care when they sent her to Afghanistan. The Iowa ARNG (IAARNG) insisted that she do another tour although her medical doctor disagreed. She did as she was directed and completed her tour. Since then, things have gotten worse. She thought they would take care of her; however, that was not the case. They told her that she had enough years to retire and that they were just going to retire her. b. She honorably served through two tours and received many awards, and now she is working with the VA to receive 100 percent (%) disability because she cannot work due to her injuries. If she could be fixed, she would prefer to work because she has three college degrees that she is not using, which makes her feel like a loaf. She cannot get a job because of her injuries. She is only asking for what is fair. She really thought that after 23 years of service, the military would take care of their own, that's what she was taught. However, that has not been the case with her. c. She is asking the Board to look into her case. She is still trying to get her medical records from the ARNG. They are not very forth coming, which has been the case the whole time. She is asking the Board to do the right thing and take care of an Army troop. d. Please let her know if the Board needs all of her medical records. She is just showing that she was under a doctor's care; they claimed she was not. Also, there are so many documents that she would have to send a box instead of an envelope. She believes she should have been released because of medical injuries. She also believes that they were working on it prior to sending her overseas. Somehow, that information is missing and the ARNG is claiming they have no records. She knows Colonel (COL) B_ S_ and Sergeant First Class D_ R_ were both working on that; however, they are both retired now. She also wrote to Senator G_, who wrote back. COL C_ C_ was put in charge; however, she heard nothing from him. She also wrote the TAG, who did not respond. 4. The applicant provides a self-authored statement and: * DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 24 October 2005 and 17 September 2011 * Department of Veterans Affairs (VA) Rating Decision, dated 12 February 2013 * a personal letter to The Adjutant General (TAG) of the State of Iowa, dated 30 May 2014 * medical progress notes, printed on 10 June 2014 * record of VA treatment and appointments, printed on 18 February 2016 * record of prescriptions August 1999 through March 2016 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the IAARNG on 26 July 1988. She was appointed as a Reserve commissioned officer of the Army on 12 August 2002, with concurrent appointment in the IAARNG. 3. The applicant entered a period of active duty on 25 August 2004. She deployed in support of Operation Iraqi Freedom (OIF) from 11 October 2004 through 27 September 2005. During that deployment, she was awarded the Purple Heart and Combat Action Badge (CAB) for actions that occurred on 13 April 2005. She was released from active duty on 24 October 2005 and was returned to the control of the IAARNG. 4. The applicant was promoted to the rank of captain (CPT) on 23 January 2007. 5. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 28 May 2008, shows the applicant was diagnosed with impingement syndrome of her right shoulder resulting from her deployment to OIF, which was determined to be "In Line of Duty (LOD)." 6. The IAARNG notified the applicant on 1 May 2009 that she was selected for retention by the Selective Retention Board (SRB) for Calendar Year (CY) 2009. In addition, she was notified that she would be considered again the following year. The CY2010 SRB notified her on 1 April 2010 that she was selected for a two-year retention. She was further notified that she would be considered again during CY2012. 7. The applicant entered another period of active duty on 6 August 2010. She deployed in support of Operation Enduring Freedom (OEF) from 13 November 2010 through 25 July 2011. 8. The applicant's DA Form 4037 (Officer Record Brief (ORB)) shows she was issued a PULHES (the acronym used to address factors comprising the Military Physical Profile Serial System) of "2-1-1-1-1-2" on 26 July 2011, meaning she had medically recorded deficiencies related to her physical capacity or stamina (P) and her psychological or psychiatric condition (S); however, she had no medically recorded deficiencies related to her upper extremities (U), her lower extremities (L), her hearing and ears (H), or her eyes (E). The severity of her medically recorded deficiencies did not require a fitness determination or her referral to a medical evaluation board (MEB). 9. On 28 July 2011, the applicant was notified that a 10 July 2011 LOD investigation was found "In the LOD." A DA from 2173 shows depression and traumatic brain injury (TBI) listed as the nature and extent of her injury. 10. A CY2012 SRB convened on 12 March 2012. The IAARNG notified the applicant on 1 April 2012 that she was non-selected for retention. The determination was based on her inability to meet height and weight standards and adhere to Army Values. She was further informed that she may be separated not earlier than 14 May 2012 and not later than 31 July 2012. 11. Also on 1 April 2012, the IAARNG notified the applicant that her separation due to non-selection for retention was delayed for an undisclosed period due to her medical concerns. a. Upon resolution of her medical issues, if found fit for duty, she was to work with her unit to coordinate her retirement and benefit options, effective no later than 90 days following resolution. b. Upon resolution of her medical issues, if found not fit for duty, she would be medically retired in accordance with (IAW) Army Regulation 40-501 (Standards of Medical Fitness). She would then work with her unit to coordinate her retirement and benefit options. 12. Orders 255-034, issued by the IAARNG on 11 September 2012, show the applicant was released from the ARNG effective 30 September 2012 and transferred to U.S. Army Control Group (Retired Reserve). The corresponding NGB Form 22 (Report of Separation and Record of Service) shows she was honorably separated after completing 24 years, 2 months, and 5 days of service. 13. The applicant provides: a. Her VA Rating Decision, dated 12 February 2013, which shows she received service-connection for TBI at 0%, chronic headaches at 30% and post- traumatic stress disordered (PTSD) at 30%. She was further denied employability and service connection for the following: * bilateral leg pain * back pain * neck condition * subcutaneous lipoma * lump on left leg; and * parasite illness b. A letter to the IAARNG TAG, dated 30 May 2014 in which she requests his assistance with her medical and benefits concerns. She states she exhausted all of her avenues and resources. (She states elsewhere that the TAG did not respond.) c. Medical progress notes, VA treatment and appointments, and prescription records spanning 1989 through 2016. 14. In the processing of this case, the Army Review Boards Agency (ARBA) Senior Medical Advisor provided an advisory opinion on 29 September 2017. The advisory official noted and opined the following: a. A review of the applicant’s electronic medical record (AHLTA) revealed clinical encounters from July 2003 through July 2011. Clinical notes reviewed from August 2010. No radiology reports were found. Laboratory results reviewed from July 2003 through July 2011. 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 Interactive Personnel Electronic Records Management System (iPERMS) records were reviewed. b. Limited review of VA records through the Joint Legacy Viewer shows her with 28 listed problems (20 VA entered), including chronic PTSD, insomnia, restless legs syndrome, depression, adjustment reaction with physical symptoms, headache, cognitive disorder not otherwise specified, memory loss, concussion with no loss of consciousness and concussion with loss of consciousness, chronic sinusitis, shoulder pain, acne, rash and other nonspecific skin eruption, diarrhea, obesity, and others. The applicant is VA service connected at 80% overall (PTSD at 50%; migraine headaches at 30%; limited motion of arm at 20%; tinnitus at 10%; labyrinthitis at 10%, and facial scars at 0%). c. The available record supports PTSD, depression, anxiety, and TBI existed at the time of her service. However, her physical conditions met retention standards during her era of active duty service. d. Her medical conditions were duly considered during medical separation processing. e. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. The applicant was separated as a result of non- selection for retention. 15. The applicant was provided a copy of the advisory opinion on 2 October 2017, to provide her an opportunity to comment and/or submit a rebuttal. She did not respond. REFERENCES: 1. Army Regulation 40-501 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 an 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 profile type - temporary or permanent. If the 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 MMRB in accordance with Army Regulation 600–60 (Physical Performance Evaluation System), unless waived by the MMRB convening authority. Those Soldiers who do not meet retention standards must be referred to an MEB in accordance with chapter 3. d. Chapter 10 (ARNG) provides guidance on the basic policies, standards, and procedures for medical examinations and physical standards for ARNG and Army National Guard of the United States (ARNGUS) Soldiers. Paragraph 10-25 (Soldiers pending separation for failing to meet medical retention standards) provides that: (1) Soldiers with non-duty related impairments are eligible to be referred to a PEB solely for a fitness determination, but not a determination of eligibility for disability benefits. Determination of whether a non-duty case is forwarded to the PEB is at the request of the Soldier. The Soldier will have a completed LOD or memo that notifies him or her of non-duty related findings (Not in the Line of Duty – NILOD). The Soldier may not challenge the PEB findings in person. (2) Soldiers pending separation for in the line of duty (ILOD) injuries or illnesses will be processed in accordance with Army Regulation 40–400 (Patient Administration) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 2. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. The version in effect at the time, provided for medical review board's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 3-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 3-5 states the percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. c. Public law defines physical DES as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the armed forces. It is comprised of MEBs, PEBs, counseling of Soldiers, and mechanisms for final disposition. d. A Soldier may not be discharged or released from active duty because of a disability until they have made a claim for compensation, pension or hospitalization with the VA or signed a statement that their right to make such a claim has been explained, or have refused to sign such a statement. e. The DES consists of three systems: (1) Legacy DES for cases referred under the duty-related process, the PEB determines fitness and determines the disability rating percentages using the VARSD. (2) IDES features a single set of disability medical examinations that may assist the DES in identifying conditions that may render the Soldier unfit. A single set of disability ratings provided by the VA for use by both departments. The DES applies these ratings to the conditions it determines to be unfitting and compensable. The Soldier receives preliminary ratings for their VA compensation before the Soldier is separated or retired for disability. (3) Expedited DES is a voluntary process for Soldiers unfit for catastrophic injuries or diseases in which U.S. Army Physical Disability Agency (USAPDA) may permanently retire the Soldier without referral to the PEB based on the medical treatment facility (MTF) narrative summary. f. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile in accordance with AR 40- 501 and the profile contains a numerical designator of P3/P4 in any of the serial factors for a condition that appears to not meet medical retention standards. A Soldier must be assigned a P3/P4 profile to refer a Soldier to the DES. (2) A Soldiers is referred to the DES based on the outcome of a Military Occupational Specialty Administrative Retention Review (MAR2) evaluation. g. An MEB is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per AR 40-501. An MEB may determine that a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. The MEB must not provide conclusions or recommendations regarding fitness determinations. (1) Upon referral into the DES, the physician approving the Soldier P3/P4 profile will initiate the VA Form 21-0819 (VA/Joint Disability Evaluation Board Claim) and send the form to the MTF commander. (2) The Soldier will be assigned a PEB liaison officer (PEBLO) who will provide a general overview of the DES process. (3) The Soldier will have the opportunity to claim conditions on the VA Form 21-0819. After the VA Form 21-0819 is submitted, the Soldier may also claim additional conditions, but the VA will not evaluate the added claimed conditions until after separation unless the PEB refers the condition for further VA or MEB evaluation before issuing a final fitness determination, or if the MEB approval authority concludes that adding a new medical condition is necessary. h. The PEB determines fitness for purposes of a Soldier's retention, separation or retirement. (1) All cases will be initially adjudicated by the Informal PEB. The Informal PEB conducts a documentary review of the case file without the presence of the Soldier to make an initial decision on the Soldier’s fitness for continued service. The decision will be document on a DA Form 199. (2) With the exception of cases adjudicated under the legacy DES, if the initial decision of the PEB is that the Soldier is unfit, the PEB president will request preliminary VA ratings for each condition the PEB found to be unfitting. The PEB will apply the VA disability rating percentages to the conditions determined to be compensable by the PEB. (3) The Soldier can accept the Informal PEB decision thereby waiving his or her right to a formal hearing. The Soldier can non-concur with the Informal PEB decision and demand or request a formal hearing. Accept or request reconsideration of the VA preliminary ratings. The VA will only reconsider when there is new medical evidence or sufficient justification of an error to warrant reconsideration. i. The USAPDA will review the PEB before the PEB recommendations and finding are approved for or by the Secretary of the Army (SECARMY) or higher authority, as applicable. The USAPDA has the authority to approve disability cases for the SECARMY and issues disposition instructions 3. 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, 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. 4. Title 38, U.S. Code, sections 1110 and 1131, permits 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. DISCUSSION: 1. The applicant requests her retirement orders be rescinded and she be referred to the IDES for possible discharge or retirement due to physical disability. She contends the ARNG made her retire instead of retaining her to resolve medical issues. 2. The applicant was ordered to active duty for a deployment in support of OIF from 2004 to 2005. In 2008, she was diagnosed with impingement syndrome of her right shoulder resulting from her deployment; that injury was determined to have occurred "In the LOD." 3. The applicant was ordered to active duty for a deployment in support of OEF from 2010 through 2011. In July 2011, she was diagnosed with PTSD and TBI; these diagnosis were determined "In the LOD" as well. 4. The applicant was notified on 1 April 2012 that she was non-selected for retention by the CY2012 SRB. She was informed that she would have to separate no later than 31 July 2012. However, the IAARNG was aware of her medical issues and informed her she would remain in the ARNG until her medical issues were resolved. 5. The applicant received separation orders on 11 September 2012 transferring her to the Retired Reserve effective 30 September 2012. The specific facts and circumstances of the applicant's discharge processing are not available for review. Her record is void of evidence that shows the result of her medical extension. However, the IAARNG was aware of her medical issues, and subsequently issued her separation orders several months after the initial 31 July 2012 separation date. 6. Regulatory guidance provides disposition through medical channels takes precedence over administrative separation processing. There is no evidence the applicant's unit or the IAARNG unlawfully stopped her medical process in order to retire her. 7. The applicant was transferred to the Retired Reserve after being extended past an established separation date to resolve medical issues. 8. An advisory opinion was requested to review the applicant's medical records and contentions. The advisory official found no evidence of a medical disability or condition during his period of military service that would support a change to the discharge in this case. 9. The law allows the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army's rating. Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service. BOARD DATE: 5 April 2018 DOCKET NUMBER: AR20160006728 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006728 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006728 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2