ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 February 2019 DOCKET NUMBER: AR20160007659 APPLICANT REQUESTS: physical disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He was injured during his military career and had to get out of the Army due to this injury. He was taken to a fit for duty orientation and deemed unfit for duty. While he was waiting to be medically retired from the Active Guard/Reserve (AGR) program, the executive officer contacted U.S. Army Human Resources Command (HRC) saying he had been absent without leave (AWOL) for 6 months of his active duty time. b. When he received his DD Form 214 (Certificate of Release or Discharge from Active Duty), he saw that it states he was unavailable to sign. When he confronted the executive officer about this, he was assured that nothing would be different in his benefits, but it was a step he had to take to get a new Soldier in his slot because the unit was deploying and he needed someone that could work. c. He did not know at the time that there was indeed a big difference. Now he is unable to find employment due to his hip injury and other disabilities. He feels he was maliciously put out of the military and it has affected his entire family, causing him financial hardship. 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 16 July 2007 and attended active duty for training from 31 July 2007 through 17 December 2007, where he was awarded military occupational specialty (MOS) 62B (Construction Equipment Repairer) and was honorably released from active duty due to completion of required active service. 4. He was ordered to active duty in support of Operation Iraqi Freedom on 30 March 2008, with service in Iraq from 10 June 2008 through 16 March 2009. He was honorably released from active duty on 10 April 2009 due to the completion of required active service and transferred back to his USAR unit. 5. HRC Orders R-09-986613, dated 16 September 2009, ordered him to active duty in an AGR status for a period of 3 years for the purpose of serving as a Construction Equipment Repairer in Marquette, MI, with a report dated of 28 September 2009. 6. A DA from 4187 (Personnel Action), dated 20 March 2012, shows: * the applicant’s duty status was changed from present for duty to AWOL on 19 March 2012 * he was assigned to quarters by competent medical authorities on 29 February 2012, for a period not to exceed 21 days * on 10 March 2012, it was discovered he had broken his quarters and departed the area for parts unknown * after being contacted one time, he willfully avoided contact by his superiors via email, text message, home visit, and telephone call 7. HRC Orders C-09-290734, dated 26 September 2012, released him from active duty, not by reason of physical disability effective 27 September 2012, and reassigned him to the U.S. Army Control Group (Reinforcement). 8. An Enlisted Record Brief, printed on 26 September 2012, shows his physical rating PULHES was 111111 and his physical category was A (no limitations). 9. He was honorably released from active duty on 27 September 2012, under the authority of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, due to the completion of required active service. He completed 2 years, 5 months, and 12 days of net active service this period and was transferred to the USAR Control Group (Reinforcement). His DD Form 214 shows he was unavailable to sign. 10. HRC Orders D-07-513979, dated 21 July 2015, honorably discharged him from the USAR. 11. On 18 September 2017, the Army Review Boards Agency (ARBA) sent the applicant a letter requesting he provide a copy of his military medical record and any other medical documents, to include civilian medical records,that support his issues. He was also advised to contact his Department of Veterans Affairs regional Office for assistance. The applicant did not respond. 12. An advisory opinion was provided by the Army Review Boards Agency (ARBA) senior medical advisor on 17 august 2018, which states: a. A review of the applicant’s electronic medical record (AHLTA) revealed clinical encounters from August 2007 thru May 2012. Clinical notes were reviewed from July 2003 (era of service – 2007 thru 2015). Radiology reports were reviewed from June 2003 then September 2007 thru December 2007. Laboratory results from June 2003 then August 2007 through March 2009 were reviewed. Prescriptions reviewed were from June 2003 thru November 2015. The applicant’s paper Service Treatment Record (STR) was not available for review. The applicant’s iPERMS (Interactive Personnel Electronic Records Management System) records were reviewed. He did not provide any medical documents in support of his request. b. Clinic visit on 10 September 2007 for left hip pain. Bilateral hip x-ray series completed (11 September 2007) for pain – Mild sclerotic and lytic changes in the anterior aspect of the proximal femoral necks bilaterally. Impression: Stress reactions in both femoral necks as described. No stress fracture is identified. c. Nuclear medicine bone scan (18 September 2007) for right hip pain – There is a very minimal focal lesion at the left (!) SI (sacroiliac) joint consistent with most minimal stress fracture. No right or other hip or pelvic lesions seen. Mild overuse uptake is noted at both medial knees. No other significant lesions seen. d. Right hand x-ray series (2 October 2007) after he punched a hard object a month ago, continued deformity to ring finger MC (metacarpal) – Posttraumatic deformity of the right fourth metacarpal with shortening. e. Occupational Therapy clinic visit on 18 October 2007 over right 4th MCP (or MPJ) (metacarpal phalangeal joint). Patient (Pt) is in first week of advanced individual training. Musculoskeletal system: Pt has full ROM (range of motion) of right wrist and fingers. MPJ of 4th digit is retracted due to old metacarpal fracture with angulation. Pt is having pain due to old injury. Reviewed radiology report with pt. Assessment: pain in right 4th MPJ due to LOD (line of duty) metacarpal fracture. Discussed Pt's status and expectations form injury. PLAN of CARE: pt. to return to CTMC (consolidated troop medical clinic) if pain limits training. The ARBA senior medical advisory notes no LOD documents found or provided by applicant. f. On 10 June 2008 he starts his service in Iraq. Theater clinic visit on 10 February 2009 for hip pain elicited by motion. “L hip pain x 3- 4 months. States was seen in basic combat training in 2007. Had x-ray and MRI. Pt states was diagnosed with stress fracture to L hip. Was given muscle relaxers and 800 mg Motrin. Pain is described as sharp. Gait was normal. He has pain with left hip flexion with resistance but not with extension. Pt does have pain with extension of the left hip after being seated for short periods. An X-ray was done and showed no obvious lucencies or bony defect…” Left hip x-ray obtained and a copy of the x-rays and the wet read were given to the patient. Results: No fracture noted. g. Theater clinic visit on 18 February 2009 for left hip pain. “Patient had difficulty getting onto exam table, due to pain he was feeling. He needed me to assist him while lying down; use of hip flexors seemed to cause a highly notable amount of pain. Process of lying down caused him to tremble till he got to a position of comfort (supine). Pain was localized at the superior aspect of the Sartorius muscle region. There was TTP (tenderness to palpation) to the site and it radiated 4in distal of the localized site running medial of the left leg. No crepitus, deformity, of edema at site. Passive ROM of the left leg was not achieved without assistance and pain was elicited at 60-75 degree motion cause pain when patient used his own strength while lowering the limb. He could raise limb 45 degrees on his own, but with pain… Profile: joint pain, localized in the hip 719.45 from 18 Feb 2009 to 18 Feb 2009; Comment: Crutches for 7 day till follow up.” h. Clinic visit on 28 February/4 March 2009. “Post Deployment Health Assessment (PDHA) done and entered into MEDPROS per MD.” DD form 2796 (Post Deployment Health Assessment) dated 4 March 2009 shows MOS: 62B10 mechanic. Patient reported a number of symptoms including headaches and a ‘cracked hip’. PDHA states during this deployment, did you experience any of the following events? (Mark all that apply): * Blast or explosion (IED, RPG, land mine, grenade, etc.): No * Vehicular accident/crash (any vehicle, including aircraft): No * Fragment wound or bullet wound above your shoulders: No * Fall: Yes * Other event (for example, a sports injury to your head): No * Described the following: * Lost consciousness or got "knocked out": No * Felt dazed, confused, or "saw stars": Yes * Didn't remember the event: Yes * Did you encounter dead bodies or see people killed or wounded during this deployment? (Mark all that apply): No * Coalition: No Enemy: No Civilian: No * Were you engaged in direct combat where you discharged a weapon?: No * Land: No sea: No air: No * Reviewed with provider – TBI screening negative * During this deployment have you sought, or do you now intend to seek, counseling or care for your mental health?: No. * List concerns: “left hip pain.” Comments: “STRESS FRACTURE LEFT HIP 2007, NOW WITH NEW PAIN TO HIP X 3 MONTHS, DIAGNOSED WITH RECURRENT STRESS.” i. 16 March 2009 – End service in Iraq. Fort McCoy psychiatry visit on 18 March 2009 for screening for demobilization. Soldier was seen on 18 March 2009 returning from Iraq. Psychological symptoms Soldier was screened for included risk of mTBI, PTSD, Alcohol, and other mental health concerns. No mTBI and no risk factors were found for these issues. Soldier reported no issues with anger or thoughts of hurting self or others. Soldier cleared to demobilize.” j. Laboratory results (16 June 2009) – Marijuana screen positive (78 ng/ml) Left hip x-ray series (16 June 2009) for pain – bony defect involving the left area of the posterior element of the SI (sacroiliac)…otherwise unremarkable. k. DD Form 2900 (Post Deployment Health Reassessment (PDHRA)) dated 13 August 2009 with applicant writing in ‘PTSD’. PDHRA states during this deployment, did you experience any of the following events? (Mark all that apply): * Blast or explosion (IED, RPG, land mine, grenade, etc.): No * Vehicular accident/crash (any vehicle including aircraft): No * Fragment wound or bullet wound above your shoulders: No * Fall: No * Other event (for example, a sports injury to your head): No Did any of the following happen to you, or were you told happened to you, IMMEDIATELY after any of the event(s) you just noted in question 9.a? (Mark all that apply): * Lost consciousness or got "knocked out": No * Felt dazed, confused, or "saw stars": No * Didn't remember the event: No * Had a concussion: No * Had a head injury: No * The applicant endorsed significant alcohol use/abuse l. Bilateral hip x-ray series (24 August 2009) – the bilateral hip joints are normal. Sacroiliac joints x-rays (24 August 2009) – The bilateral SI joints and lumbosacral junction are within normal variance, likely due to a transitional lumbosacral junction. m. Clinic visit (Fort Campbell) on 1 May 2012 for a ‘Fit for Duty’ Physical. “Patient here for his Fit for Duty; has a history of stress fractures in the right hip for 5 years; he is presently on crutches. He has good days and bad days. Taking Percocet. He cannot run, ruck, road march or carry the equipment to deploy. Will recommend a Medical Evaluation Board (MEB). Has all his medical records and supporting documents. Pain history: Left hip joint pain, when actively moved, when passively moved, worse while running, while jumping, slowly worsens with the same level of activity, is increased by moving the leg to the left side while standing, is improved by rest, by walking aids, and hip joint stiffness on the left.. Current medication Percocet & Lortab. Tobacco use in the last 10 years. Physical Examination: Pain was elicited by active flexion, extension, abduction and adduction of the hip. No swelling erythema induration tenderness on palpation of the hips. Coordination / Cerebellum: No coordination/cerebellum abnormalities were noted. Balance: Normal. Gait And Stance: Normal with crutches. Traumatic arthropathy – pelvis/hip/femur – patient unfit for duty – recommend an MEB. Fit for Duty memorandum completed. Reviewed all medical notes. Released w/ Work/Duty Limitations n. Enlisted Record Brief – AGR dated 26 September 2012 with physical exam on 19 October 2011, physical category A. PULHES-111111. o. 27 September 2012 – Last day of active military service (USAR/AGR) p. Laboratory results (28 January 2013) – marijuana screen – presumptive positive. Left hip x-ray series (25 March 2013) for fracture compared with 16 June 2009 and 24 August 2009. There is a small focus of cortical thickening along the medial proximal femoral shaft which is unchanged back to 2009. Impression: No acute osteoarticular abnormality. q. Laboratory results (6 June 2013) – marijuana screen – presumptive positive. r. VA TBI PM&R Consult dated 31 July 2014 “Chief complaint: + TBI Screening *History of Present Illness: 27 year old…veteran deployed to Iraq 2008/2009. 2008 IED blasted underneath vehicle causing it to flip over. Vet was gunner. + Kevlar on. Brief second of LOC. + Dazed about 20 minutes. No medical attention sought. + Headaches that night. Vet resumed regular duty following day. Uncertain of acute injuries, but states he had "several fractures" in left hip between 2007 and 2012. Vet states he had hip pain one day in 2007, woke up and couldn't stand. Sought medical attention, told stress fracture, given crutches and given Motrin. While In Iraq, also sought treatment for hip and was given Motrin and issue crutches. ~ 2010-2011 vet sought medical treatment for hip and was given medication. Charts reviewed and previous X-rays of hip were unremarkable. No findings of AVN. Vet denies pre or post deployment concussion….” s. The ARBA senior medical advisor notes there is no historical basis in the medical or available administrative records supporting the applicant’s claim that he was in a vehicle blasted by an IED that caused it flip over. The applicant denied any blast or similar events (only a fall) during this deployment on his DD Form 2796 and follow-up DD Form 2900. t. Laboratory results (12 December 2014) – Cannabinoids & Amphetamines screen – positive. CT scan head without contrast (16 December 2014) for new onset psychosis and headaches –Normal non-contrast CT of the head and no sign of acute or focal intracranial lesion. u. Laboratory results (25 January 2015) – Amphetamines, Cocaine & Cannabinoids – positive. Laboratory results (10 November 2015) – cocaine, marijuana, and benzodiazepines – all presumptive positive. Laboratory results (1 March 2018) – amphetamines & marijuana screen – presumptive positive. v. VA hospital admission from 23 to 26 March 2018 for primary diagnosis: Cocaine- induced mood disorder. Secondary diagnosis: PTSD, chronic alcohol use, cannabis abuse. w. VA hospital admission from 15 to 19 April 2018 for primary diagnosis: major depressive disorder single episode and secondary diagnosis of PTSD chronic. Polysubstance abuse. x. Limited review of VA records through the JLV (Joint Legacy Viewer) shows 32 listed problems (18 VA-entered) including anxiety disorder, PTSD, migraines, low back pain, pelvic region joint pain, polysubstance dependence, cocaine abuse, cannabis abuse, nicotine dependence, disorder of penis, lack of housing/homelessness, and others. The applicant is VA service-connected at 100% overall (PTSD at 100%; migraine headaches at 30%; limited flexion of thigh at 10%; tinnitus at 10%; and limited extension of thigh at 0%). y. 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. The applicant endorsed a number of depression and PTSD “symptoms” on a self-report checklist in May 2012 while in USAR/AGR status during a period when he was recorded as AWOL. No Line of Duty (LOD) documentation found in iPERMS. VA diagnoses of PTSD, major depressive disorder and polysubstance abuse. z. Based on the available records, he did not have any medical condition(s) that failed medical retention standards IAW (in accordance with) Army Regulation 40- 501(Standards of Medical Fitness), warranting a separation through medical channels. aa. The applicant met medical retention standards for hip pain, back pain, headaches, and all other physical, medical, dental and/or behavioral conditions in accordance with chapter 3, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service (USAR). Polysubstance abuse is not a boardable medical condition. bb. The applicant’s medical conditions were duly considered during separation processing. 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. cc. The applicant separated with an honorable characterization of discharge from his period of USAR/AGR service in 2012 when he was recorded as AWOL (and presumably desertion, over 30 days) for the last several months (minus a brief return to active duty for separation processing). The circumstances of this dichotomy are unclear. The applicant permanently discharged from the USAR in 2015 also with an Honorable characterization of service. 9. The applicant was provided a copy of the advisory opinion on 23 August 2018 and given an opportunity to submit comments, but he did not respond. 10. 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. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The mere presence of a 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 the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 11. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 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. a. Paragraph 3-2 states 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. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 12. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board agreed medical concerns were fully considered; however, did not meet regulatory guidance requiring a medical evaluation board. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 4 establishes policy and prescribes procedures for discharging members or releasing them from active duty upon termination of enlistment and other periods of active duty or active duty for training. A Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service as honorable, unless the Soldier is in an entry-level status and service is uncharacterized. 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 is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. 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 either are separated from the military or are permanently 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 upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a 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 the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Army Regulation 635-40 establishes the Army Disability Evaluation System 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 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. a. Paragraph 3-2 states 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. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 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. ABCMR Record of Proceedings (cont) AR20160007659 2 1