BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20160007209 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: AR20160007209 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: * reinstatement in the U.S. Army Reserve (USAR) for continuation of service past his previous mandatory removal date (MRD) * evaluation within the Integrated Disability Evaluation System (IDES) for possible disability retirement * a personal hearing before the Board 2. The applicant states: a. He should not have been discharged at his MRD; he should have been placed on medical extension in order to complete a medical evaluation. b. A temporary profile (T3 profile) from the New Mexico Army National Guard (NMARNG) State Surgeon and a permanent profile (P2 profile), both issued while he was serving on active duty, revealed one or more conditions requiring further review to determine if he met medical retention standards in accordance with (IAW) Army Regulation 45-501 (Standards of Medical Fitness), chapter 3. c. A temporary medical disqualification was placed on his file, which prevented any favorable actions, including transfer from the Individual Ready Reserve (IRR) to a troop program unit (TPU). Consequently, he was unable to transfer out of the IRR, was unable to receive any assistance to determine his medical retention standards, and requests to be evaluated by a medical evaluation board (MEB) and physical evaluation board (PEB) were ignored. He believes the physical limitations as written warrant a P3 profile, which should have led to an MEB and quite possibly his permanent retirement for disability. d. Several medical records including hand written profiles were not entered into the new electronic medical records system. As he transferred from the NMARNG to the USAR, with active duty service on Active Duty for Operational Support (ADOS) orders for the last few years of his career, his medical records were overlooked and he fell through the cracks. After being transferred into the IRR, there was no administrative support available to get this corrected. 3. In a self-authored statement, the applicant states: a. While serving on active duty from 2009 to 2012, he received medical treatment for several injuries including, neck, shoulder, hip, knee, and hernia. He had several pain procedures on his neck and left knee, bi-lateral hernia surgery, left hip surgery, and left knee surgery. During this timeframe, he was issued several physical profiles, some of which were not entered into eProfile or the medical protection system (MEDPROS) and were overlooked by attending medical professionals at WBAMC, Fort Bliss, TX. Had these profiles been reviewed and/or processed, they would have resulted in his referral to an MEB to determine if he met medical retention standards. b. A surgical procedure report, dated 9 October 2008, shows the doctor clearly recommended a P3 profile for no sit-ups, and indicated it was detrimental to individuals with cervical facet arthropathy. He provided this report to the NMARNG State Surgeon who wrote a T3 profile, dated 9 October 2007. At that time, he was serving on federal active duty orders in support of Operation Jump Start. c. Upon entering active duty in 2009, he was treated by Captain (CPT) W_ V_ at WBAMC. In review of his medical records from civilian providers, the Department of Veterans Affairs (VA), and the NMARNG State Surgeon, CPT V_ wrote him a P2 profile dated 1 June 2010 for neck pain. The functional limitations noted are no running, no jumping, no marching, no sit-ups with hands behind his head, and no wearing of individual body armor (IBA), Kevlar, nor rucksack. CPT V_ then referred him to orthopedics and he saw Dr. J_ N_ who wrote another P2 profile for degenerative disc - cervical dated 30 July 2010. The functional limitations of this profile were no carrying over 48 pounds (lbs), no Army Physical Fitness Test (APFT) run-may do walk instead. He believes both of those profiles were so physically limiting that they should have made him non- deployable as he was and is unable to wear Kevlar, IBA, or carry his basic load, which is required of every Soldier. He was not aware of the medical retention standards at the time, but now he knows that his profile clearly should have been a P3 profile prompting a MEB, and possibly leading to medical retirement. d. He had bi-lateral hernia surgery and left hip surgery because of injuries sustained while serving on active duty in 2011. In February of 2012, he had a second surgery on his left knee because of injuries sustained while serving on active duty. He was allowed to leave active duty in March of 2012 while on a temporary profile prior to completing physical therapy. e. While serving on active duty from 2009 to 2012, his USAR unit transferred him to the IRR so they could backfill his position. Upon leaving active duty, he received no S1 support whatsoever from the IRR. He attempted to transfer to a drilling unit, but it was substantially delayed due to incomplete physical evaluations and unresolved temporary profiles. f. He worked extensively the past two years trying to seek assistance without success. As his career transitioned from ARNG to USAR and back to active duty, the paper medical records and electronic medical records seemed to have been lost in the shuffle. Thus Soldiers like him, who have served honorably for over 27 years, simply fall through the cracks. 3. The applicant provides a self-authored statement and: * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 22 December 2006 * DD Form 214 for the period ending 21 September 2007 * DA Form 3349 (Physical Profile), dated 9 October 2007 * Surgical Information Procedure Report, dated 14 October 2008 * Orders A-02-905125, issued by the U.S. Army Human Resources Command (HRC), dated 18 February 2009 * DA Forms 3349, dated 1 June 2010 and 30 July 2010 * Orders A-03-106627, issued by HRC on 29 March 2011, with amendment dated A-03-106627A01, issued by HRC on 30 March 2011 * Orders 11-147-00037, issued by Headquarters, 88th Regional Support Command (RSC), Fort McCoy, WI on 27 May 2011 * DD Form 214 for the period ending 25 March 2012 * a memorandum for record (MFR) from the Medical Director, Rio Bravo Medical Home, William Beaumont Army Medical Center (WBAMC), Fort Bliss, TX, dated 18 March 2014 * a memorandum from HRC, dated 12 February 2015 * Orders C-03-504632, issued by HRC on 25 March 2015 CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army on 15 May 1987, with concurrent appointment in the NMARNG. 2. The applicant entered active duty on 17 July 2005 for a deployment in support of Operation Enduring Freedom. He deployed in support of OEF from 2 September 2005 through 1 September 2006. He was promoted to the rank of lieutenant colonel (LTC)/O-5 on 1 June 2006. 3. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 6 September 2006, shows the applicant was examined on 10 June 2006, following an injury he sustained on 25 May 2006, in which he was injured in his pelvic area when the vehicle he was riding in came to an unexpected halt. The nature and extent of his condition was listed as abdominal pain in the left lower belly (LLQ). He continued to have aggravation to the area due to wearing IBA, and continuous pain to the LLQ. The injury was determined to be "In the Line of Duty (LOD)." 4. The applicant was released from active duty and he returned to the NMARNG on 22 December 2006. 5. The applicant entered active duty on 14 June 2007 and was released from active duty and returned to the NMARNG on 21 September 2007. 6. The applicant transferred to the USAR on 6 May 2008. 7. The applicant entered ADOS on 26 March 2010. He remained on active duty until 25 March 2012. Upon his release from active duty, he transferred to a TPU unit of the USAR. 8. The applicant's record shows he emailed HRC on 7 April 2014, requesting information on how to start an MEB. He noted he had a P2 profile in the past that he believed should be a P3. HRC responded by informing him that the Personnel Action Reserve Branch was responsible for scheduling MEBs and provided him the section's contact information. 9. HRC notified the applicant of a directive to provide additional medical information on 12 February 2015 stating: a. A recent review of his physical exam revealed one or more medical condition(s) requiring further review to determine if he meets medical retention standards IAW Army Regulation 40-501, chapter 3. Additional information is required to determine the current status and any limitations. b. During the medical determination process, a temporary medical disqualification was placed on his medical file, which would prevent him from any favorable actions and performing Active Duty Training (ADT)/Temporary Duty (TDY) until this issue was resolved. It was vital that he provide legible photocopies of all information requested on the enclosed Army HRC Form(s) 4123. He was to pay particular attention to the suspense date (29 March 2015). He was given at least 30 days to comply with the request. c. He was provided information to fax or mail the requested information directly to their office no later than the suspense date. d. Failure to respond by the suspense date or failure to follow instructions may result in "Failure to Comply" status. Temporary medical disqualifications will remain in your medical file until the issue is resolved. 10. The applicant's record is void of evidence that shows he complied with meeting HRC's suspense date to provide additional medical information. 11. Orders C-03-504632, issued by HRC on 25 March 2015, ordered the applicant's release from the IRR and transfer to the Retired Reserve effective 1 June 2015, based on his completion of maximum authorized years of service. 12. The Office of the Assistant Secretary, Manpower and Reserve Affairs (ASA, M&RA) notified the applicant on 8 May 2015 that his MRD had been extended to 1 December 2015 by an exception to policy (ETP), so he could be considered by a promotion selection board for which he was eligible. 13. An entry was made within the applicant's record on 6 July 2015 that shows he had a DA Form 3349 approved and mailed to him, which showed he met medical retention standards on 17 March 2015. This DA Form 3349 is not available for review. 14. The applicant's record is void of a separation document amending his 1 June 2015 separation date. However, his DA Form 5106 (Chronological Statement of Retirement Points) shows he retired on or about 2 December 2015, apparently IAW with the granted MRD extension. 15. The applicant's record is void of evidence that shows he was issued a DA Form 3349 with a P3/4 profile, thus warranting referral to an MEB. 16. The applicant provides: a. A DA Form 3349, dated 9 October 2007, which shows he received a T3 profile for degeneration of cervical intervertebral disc; sprain of unspecified site of shoulder and upper arm; and post-surgery for shoulder for AC separation and herniated discs in the cervical. The profiling officer signed the profile; however, it was not authenticated by an approving authority. b. A Surgical Information Procedure Report that shows he had surgery for cervical facet arthropathy on 9 October 2008. The surgeon noted that he recommend the applicant's battalion surgeon issue him a P3 profile for no sit- ups, as sit-ups are extremely detrimental to individuals with cervical fact arthropathy. c. A DA Form 3349, dated 1 June 2010, which shows he received a P2 profile for neck pain. Permanent limitations were the following: no running, no jumping, no marching, no IBA/Kevlar/ruck, and no sit-ups with hands behind his head. The profile is signed by the profiling officer; however, it was not authenticated by an approving authority. d. A DA Form 3349, dated 30 July 2010, which shows he received a hand- written P2 profile for degenerative discs-cervical. Permanent limitations were the following: no carrying over 48lbs; no APFT run, may do walk instead. The profile is signed by the profiling officer; however, it was not authenticated by an approving authority. e. An MFR from WBAMC, dated 18 March 2014, which shows the Medical Director, Rio Bravo Medical Home, wrote an opinion after reviewing the applicant's medical records. Who was provided the MFR is not available. (1) He was noted to sustain several injuries while deployed in support of OEF. Of note, his complaint of continuing orthopedic issues particularly left knee, left hip, and neck pain and dysfunction. In review of records, it appears he sustained injury to these areas during his deployment to Afghanistan. (2) Of note, left knee radiologic studies appear to differ somewhat in seventy of concern, but noted in several studies is Patella Alta and some narrowing of the left knee intra-articular space. The doctor feared that this may be overshadowed by the sequella of previous oshgood schlater disease, which is the primary diagnosis of most of the studies. In the doctor's opinion, the other radiologic findings may suggest sequella of orthopedic trauma during deployment. (3) Left hip impingement and shoulder slap tear are also noted and were surgically treated, but this is not always a cure all and continued pain and dysfunction is noted by the patient. These issues are again most likely exacerbated by service-connected injuries. (4) He also noted to have cervical spinal degenerative joint disease (DJD) and stenosis, which is almost certainly exacerbated if not caused by injuries sustained in combat. He notes dysfunction in range of motion and continued pain for these injuries. Radiologic studies are not extremely impressive, but this is often the case with spinal degenerative injuries. As always with spinal injuries, there is doubt whether this can be easily cured with surgical treatment. (5) While the findings in this record review show mostly degeneration that is shared almost universally with other Soldiers who's military job was in the combat arms profession, these issues are more seen in the general population in patients of the 65 - 70 age range as opposed to a young man 45 years old. The doctor states, he would have to conclude that the dysfunction and findings continuing to plague him are directly related to military service. 17. In connection with the processing of this case, an advisory opinion was obtained on 29 September 2017 from the Army Review Board Agency's (ARBA) Senior Medical Advisor. The medical advisory opinion states: a. DA Forms 67-9 (Officer Evaluation Report) show: (1) from 23 February 2010 through 22 February 2011 (12 months) with APFT - Pass (16 July 2010) with height 71 inches and weight 185lbs, meets standard. Rater: Outstanding performance must promote. Senior rater- Best Qualified." ... a top 20% officer ... "Center of Mass. (2) from 23 February 2011 through 28 July 2011 (5 months) with APFT Pass (11 February 2011) with height 71 inches and weight 185lbs, meets standard. Rater: Outstanding performance must promote. Senior rater- Best Qualified. Center of Mass. (3) from 29 July 2011 through 25 March 2012 (8 months) with APFT – Pass (21 March 2012) with height 71" and weight 197lbs, meets standard. Rater: Outstanding performance must promote. Senior rater - Best Qualified. Center of Mass. b. Limited review of VA's records through the Joint Legacy Viewer with 80 listed problems (15 VA entered) including chronic post-traumatic stress disorder (PTSD), insomnia, headache, breathing related sleep disorder, obstructive sleep apnea, neck pain, cervical radiculopathy, shoulder pain, partial tear of rotator cuff, low back pain, hip pain, knee pain, sinusitis, primary gout, and others. The VA service-connected the applicant at 100 percent (%) overall (as of May 2015 with sleep apnea syndrome at 50%, PTSD at 30%, arm limitation of motion at 20%, lumbosacral or cervical strain at 10%, limited flexion of thigh at 10%, degenerative arthritis of the spine at 10%, limited extension of the knee at 10%, tinnitus at 10%, limited extension of the thigh at 0%, thigh condition at 0%, frontal chronic sinusitis at 0%, inguinal hernia at 0%, and scars at 0%. c. The applicant had no boardable behavioral-health condition during his period of service. No Department of Defense diagnosis or behavioral-health treatment for PTSD; he received a VA diagnosis of PTSD. d. The applicant met retention standards IAW Army regulation 40-501. Therefore, no separation was warranted through medical channels. e. His medical conditions were duly considered during medical separation processing. f. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case. There was no indication for MEB/PEB processing at the time of his separation from active military service in March 2012. 18. The applicant was provided a copy of the advisory opinion on 2 October 2017, for his information and to provide him an opportunity to comment or rebut the opinion. He respond on 16 October 2017 with the following: a. He disagrees with the ARBA medical advisory opinion and recommendation. b. DA Form 3349, 5b states "able to move with fighting load at least 2 miles (48lbs, includes helmet, boots, uniform load bearing equipment (LBE), weapon, protective mask, pack, etc). c. His neck issue is included in the LOD dated 30 Sep 2006. WBAMC referred him to civilian-based healthcare for diagnosis and treatment from injuries sustained during his deployment to OEF from 17 July 2005 through 22 December 2006. He was referred to Dr. P_ S_ and Dr. M_ P_ by Dr. D_ R_ post shoulder surgery in March 2007. Dr. P_ surgically treated his neck injury in 2007 while he was serving on active duty during Operation Jump Start. This was reported to his chain of command and a T3 profile was issued by LTC M_ L_ who placed an "X" under the box "No" for block 5b, on the DA Form 3349, dated 9 Oct 2007. He was later surgically treated by Dr. R_ O_ in 2009. He entered active duty on 18 February 2009 and was given a T2 profile from CPT W_ V_ who paced an "X" under the "No" box indicating no IBA/Kevlar/Ruck. d. He had an active temporary profile for post left knee surgery when his ADOS orders expired in March 2012. This left his file medically flagged leaving active duty and prevented him from transferring from IRR to the 2nd Medical Training Brigade or continuing to serve until his MRD in 2015. e. According to Army Regulation 40-501, chapter 3-41e(1), he should have been referred to a MEB once it was determined that he could not wear a helmet nor carry over 48lbs in the year 2010. He is requesting an extension of his MRD. So that he can go through the MEB process and determine if he met retention standards and possibly have been medically retired. 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 40-501 provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System (DES) in accordance with Title 10, U.S. Code, Chapter 61 and the Department of Defense Instruction 1332.18 (DES). It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability to reasonably perform their duties, it provides for the disposition of the Soldier according to applicable laws and regulations. a. Paragraph 5-5 (Presumptions of Fitness) provides the DES compensates disabilities when they cause or contribute to career termination. Soldiers who are pending retirement at the time they are referred for disability evaluation are presumed fit for military service. If referred to a PEB, the PEB will presume Soldiers to be pending retirement when the Soldier's date of referral to the DES is within 12 months of a MRD for Reserve Component Soldiers. These 12 months are called the presumptive period in which the PEB would find Soldiers fit for military service. (1) 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: (2) 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. (3) An acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. b. Public law defines physical DES as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the armed forces. It is comprised of MEBs, PEBs, counseling of Soldiers, and mechanism for final disposition. c. A Soldier may not be discharged or released from active duty because of a disability until they have made a claim for compensation, pension or hospitalization with the VA or signed a statement that their right to make such a claim has been explained, or have refused to sign such a statement. d. The DES consists of three systems: (1) Legacy DES for cases referred under the duty-related process, the PEB determines fitness and determines the disability rating percentages using the VA Schedule for Rating Disabilities (VARSD). (2) Integrated DES (IDES) features a single set of disability medical examinations that may assist the DES in identifying conditions that may render the Soldier unfit. A single set of disability ratings provided by the VA for use by both departments. The DES applies these ratings to the conditions it determines to be unfitting and compensable. The Soldier receives preliminary ratings for their VA compensation before the Soldier is separated or retired for disability. (3) Expedited DES is a voluntary process for Soldiers unfit for catastrophic injuries or diseases in which USAPDA may permanently retire the Soldier without referral to the PEB based on the medical treatment facility (MTF) NARSUM. e. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile in accordance with 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. f. An MEB is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per AR 40-501. An MEB may determine that a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. The MEB must not provide conclusions or recommendations regarding fitness determinations. (1) Upon referral into the DES, the physician approving the Soldier P3/P4 profile will initiate the VA Form 21-0819 (VA/Joint Disability Evaluation Board Claim) and send the form to the MTF commander. (2) The Soldier will be assigned a PEB liaison officer (PEBLO) who will provide a general overview of the DES process. (3) The Soldier will have the opportunity to claim conditions on the VA Form 21-0819. After the VA Form 21-0819 is submitted, the Soldier may also claim additional conditions, but the VA will not evaluate the added claimed conditions until after separation unless the PEB refers the condition for further VA or MEB evaluation before issuing a final fitness determination, or if the MEB approval authority concludes that adding a new medical condition is necessary. g. The PEB determines fitness for purposes of a Soldier's retention, separation or retirement. (1) All cases will be initially adjudicated by the Informal PEB. The Informal PEB conducts a documentary review of the case file without the presence of the Soldier to make an initial decision on the Soldier’s fitness for continued service. The decision will be document on a DA Form 199. (2) With the exception of cases adjudicated under the legacy DES, if the initial decision of the PEB is that the Soldier is unfit, the PEB president will request preliminary VA ratings for each condition the PEB found to be unfitting. The PEB will apply the VA disability rating percentages to the conditions determined to be compensable by the PEB. (3) The Soldier can accept the Informal PEB decision thereby waiving his or her right to a formal hearing. The Soldier can 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. h. The USAPDA will review the PEB before the PEB recommendations and finding are approved for or by the Secretary of the Army (SECARMY) or higher authority, as applicable. The USAPDA has the authority to approve disability cases for the SECARMY and issues disposition instructions. 4. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 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 rated at least 30 percent. 6. Title 10, U.S. Code, section 14507(a) provides the MRD for any rank LTC and below is 28 years. Officers in the grade of LTC and below, who are not on a list of officers recommended for promotion to the next higher grade, shall be removed from the RASL on the first day of the month after the month in which the officer completes 28 years of commissioned service. The applicant reached 28 years of commissioned service on 15 May 2015; therefore his MRD would was 1 June 2015 (first day of the following month he reached 28 years of commissioned service). 7. 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 reinstatement in the USAR for continuation of service past his previous MRD; evaluation within the IDES for possible disability retirement; and a personal hearing before the Board. He contends his P2 profiles should have been P3 profiles, thereby warranting his referral into the IDES process. 2. The applicant accepted an appointment as a Reserve commissioned officer on 15 May 1987 and he was promoted to LTC on 1 June 2006. The MRD for LTCs is the 1st day of the month following 28 years of commissioned service; therefore, his MRD was 1 June 2015. 3. The applicant deployed in support of OEF from 2 September 2005 through 1 September 2006. A DA Form 2173 shows the applicant had abdominal pain and an injury to his LLQ during the deployment that was determined "In the Line of Duty" on 6 September 2006. 4. The applicant underwent surgery (cervical facet arthropathy) on 9 October 2008. The medical doctor who performed the surgery recommended that his battalion surgeon consider putting him on a P3 profile. The evidence of record does not support the issuance of a P3 profile after the recommendation was made. 5. A profiling officer provided the applicant a P2 profile on 1 June 2010 for neck pain. The profile does not show it was authenticated by an approval authority. He received a hand-written P2 profile on 30 July 2010 for degenerative discs- cervical. This profile also lacks authentication by an approval authority. He contends several of his profiles were not added to his medical records and were therefore overlooked. He did not provide a reason as to what prevented him from ensuring the profiles were in his medical records prior to being processed for separation. 6. The applicant contends his P2 profile(s) should have been P3 profile(s). The applicant's OERs covering 23 February 2010 through 25 March 2012 show he was able to perform the duties of his office, grade, and rank. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 7. The applicant provided an MFR from a WBAMC medical officer, dated 18 March 2014, where the medical officer concluded his physical condition was service-connected, resulting from his deployment to Afghanistan. 8. The applicant requested information from HRC on 7 April 2014, inquiring as to how he could request an MEB for a P2 profile he received in the past that he believed should have been a P3 profile. HRC provided him the contact information of the section responsible for the MEB process. 9. The governing regulation provides the DES begins for a Soldier when issued a permanent profile that 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. The evidence of record confirms he did not receive a P3/4 profile during his period of service. 10. The applicant was within 12 months of his MRD due to length of commissioned service for a LTC on 1 June 2014. Therefore, he was "pending mandatory retirement" as of 1 June 2014. a. He entered the presumptive period 1 June 2014. During the presumptive period, he did not develop a new condition that would prevent further duty were he not retiring, nor did he experience a serious deterioration of chronic condition. b. As evident by the applicant's OERs, he was performing duties befitting his experience before entering the presumptive period, as his medically unacceptable conditions did not substantially interfere with his demonstrated acceptable performance as a 14B, or require transfer to duties not befitting his experience. His medically unacceptable conditions did not result in the premature termination of his career. Therefore, if he were referred to a PEB after 1 June 2014, he would have been found fit by presumption. 11. HRC notified the applicant on 12 February 2015 that his recent physical medical exam revealed one or more medical condition(s) requiring further review to determine if he met medical retention standards. A temporary medical disqualification was placed on his medical file preventing favorable actions and ADT/TDY until the issue was resolved. 12. The applicant's record shows HRC recorded that he received a new approved profile and met medical retention standards on 17 March 2015. The new DA Form 3349 is not available for review. The specific facts and circumstances of the applicant's discharge processing are not available for review. His record is void of evidence that shows the result of his medical review. However, HRC was aware of his medical issues, and subsequently issued him separation orders. Thus, it appears he did not have a grave illness or experience a serious deterioration of a chronic condition at that time. 13. On 25 March 2015, the applicant received retirement orders for a 1 June 2015 separation date (IAW his MRD). His MRD was extended by the office of the ASA (M&RA) to 1 December 2015 by way of an ETP, due to a delay in promotion selection screening. The applicant was subsequently transferred to the Retired Reserve on or about 2 December 2015. In the absence of evidence showing otherwise, his separation is presumed to have been administratively correct and in conformance with applicable laws and regulations. It is also presumed HRC correctly determined his medical issues were resolved. 14. 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, nor referral to a MEB/PEB. 15. The law allows the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, awards of VA ratings do not establish an error or injustice in the Army's rating process. 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. 16. The Board has the option to refer the applicant to the Office of The Surgeon General (OTSG) for review to determine the appropriateness of his discharge or retirement by reason of physical disability under the IDES process. 17. 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 is sufficient to render a fair and equitable decision at this time. BOARD DATE: 24 April 2018 DOCKET NUMBER: AR20160007209 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. Signture ____________x____________ 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) AR20160007209 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007209 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2