ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 February 2019 DOCKET NUMBER: AR20160012596 APPLICANT REQUESTS: Correction of his records to show he was found fit for duty in 2008. He also requests personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 3349 (Physical Profile), dated 2 November 2008 * memorandum from the Tennessee National Guard, dated 10 November 2008, subject: State Medical Review Board (SMRB) Fitness for Duty Evaluation Findings * two fax cover sheets, dated 30 September 2009 * physician notes from Lifespan Health, Savanah, TN (4 pages) * Leave and Earnings Statement * memorandum from the 255th Engineer Detachment (Asphalt), dated 24 August 2010, addressed to the applicant's civilian employer * office/outpatient medical notes, dated 5 August 2009 * Army National Guard (ARNG) Retirement Points History Statement, dated 2 April 2015 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 should not have been discharged because of his physical profile. Many other Soldiers are allowed to remain in the National Guard with much more serious medical conditions than his, i.e. heart attacks, diabetes, etc. b. On 10 November 2008, he received a letter from his National Guard unit. It stated that he could not continue to drill with his unit, due to his physical profile from 11 February 2008, concerning his foot problem. He disagrees, as many units have Soldiers with physical profiles but are never forced to stop drilling. c. His unit insisted he provide paperwork from the Department of Veterans Affairs (VA) hospital. He was unable to do this because the VA hospital would not give him an appointment. He faxed them paperwork from Lifespan, which is their VA annex, with doctors appointed by the VA. They refused this and any other medical paperwork. d. He received his LES during that time he was not allowed to drill. He was still considered active with his unit and paid for his insurance. He was next in line for promotion to E-5 but was passed over because he was not allowed to drill. On 24 August 2010, he received another letter stating he was to begin drilling with his unit again on 11 September 2010. e. His unit discharged him on 5 July 2011. He tried to communicate with no avail and signed the paperwork for fear that if he did not, he would receive a dishonorable discharge. He visited his VA representative and he agreed this was not right, but there was nothing he could do and had to accept what happened. His VA representative also stated that he could not appeal to any review board. At the National Guard Headquarters in Nashville, Tennessee, the chief warrant officer stated this is an injustice because of the time-line and that he could have performed many other duties until his retirement. They provided him with the correct paperwork. f. At Medical Command in Smyrna, Tennessee, the major stated that this is an injustice because he was discharged for failure to provide VA medical documents. The major also stated that his unit had to accept the paperwork he faxed to them from their VA annex and civilian doctors and this should never have happened. She also stated that it needs to be corrected, so another Soldier will not have to go through this process. 3. Following service in the U.S. Air Force, the applicant enlisted in the Tennessee ARNG (TNARNG) on 8 November 2001 with duties in military occupational specialty (MOS) 62H (Concrete and Asphalt Equipment Operator). 4. A DD Form 214 (Certificate of Release or Discharge from Active Duty), covering the period 6 August 2004 to 2 December 2005, shows he was ordered to active duty in support of Operation Iraqi Freedom and that he served in Kuwait/Iraq from 22 November 2004 to 25 October 2005. 5. A DA Form 3349, dated 2 November 2008, shows the applicant was issued a permanent physical profile based on a diagnosis of chronic residual bursitis (feet). Block 3 of the DA Form 3349 shows a permanent physical profile (PULHES) of 114311, indicating the applicant's lower extremities had a permanent medical condition or physical defect causing the performance of military duties to be drastically limited. Block 4c was not completed to indicate whether a medical evaluation board (MEB)/physical evaluation board (PEB) was required. 6. In a memorandum dated 10 November 2008, the Tennessee National Guard informed the applicant that the SMRB determined he failed to meet medical retention standards for continued service in the TNARNG. He was also informed of the following: * the SMRB unanimously recommended his involuntary separation * any soldier who fails to meet the medical retention standards for duty by any authority will not perform inactive duty training, active training, active duty for special work or any other type of duty or training prior to discharge * if he wished to appeal the decision, he had 30 days from receipt of the letter to submit to the Deputy State Surgeon's office a written request for referral to a non-duty related PEB for a determination of fitness 7. There is no evidence indicating the applicant appealed the SMRB recommendation and requested an evaluation by a PEB for fitness for duty determination. 8. A memorandum from the 255th Engineer Detachment, TNARNG, dated 24 August 2010, addressed to the applicant's civilian employer, contains the statement: "This is to verify that [the applicant] will return to military duty on the 11th of September 2010. [The applicant] will continue to perform monthly drills every month until such time as a determination has been reached on his current medical diagnosis." 9. A memorandum from the Tennessee National Guard, dated 8 March 2011, shows that a waiver of medical standards was approved to allow the applicant to extend his enlistment for a period of six months in order to complete a fitness for duty evaluation or a medical review board. 10. Orders issued by the Tennessee National Guard on 18 July 2011, directed the applicant's discharge from the ARNG and as a Reserve of the Army effective 5 July 2011. The additional instruction on the orders contain the statement: "Failure to comply to official military correspondence." 11. The applicant's National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he was honorably discharged under the authority of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-35c (6) by reason of "other designated physical or mental conditions." 12. The applicant's ARNG Retirement Points History Statement, dated 2 April 2015, shows he was credited with 14 years, 7 months, and 18 days of creditable service for retired pay. 13. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency's Senior Medical Advisor. The medical opinion states: a. A review of the applicant's electronic medical record (AHLTA) revealed no clinical encounters (note: implementation began in 2003). A radiology report from October 2004 was reviewed. Laboratory results from August 2004 through November 2005 were reviewed. The applicant's paper Official Military Records Jacket and/or paper Service Treatment Record were not available for review from the National Personnel Records Center at the National Archives and Records Administration. The applicant's Interactive Personnel Electronic Records Management System (iPERMS) records were reviewed. b. A Pre-deployment Health Assessment, dated 18 August 2004, shows no medical problems, no profiles, and no medications. Reviewed with provider - no referrals, deployable. A Pre-deployment Health Assessment, dated 26 October 2004, was unremarkable - deployable. c. A limited review of VA records through the Joint Legacy Viewer show with 8 listed problems (all VA-entered) including sensorineural hearing loss, elevated blood pressure without diagnosis of hypertension, rhinitis, hyperlipidemia, fasciitis, hemorrhoids and others. The applicant is currently receiving VA service-connected compensation rated at 10 percent overall for tinnitus and impaired hearing. d. The applicant did not meet medical retention standards for bilateral plantar fasciitis (AKA chronic residual bursitis, feet; AKA bilateral foot pain) in accordance with chapter 3, Army Regulation (AR) 40-501 (Standards of Medical Firtness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. e. The applicant's medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the reason for the discharge in this case. f. The applicant's bilateral foot condition (2006-2008) presumably precluded significant physical activity, i.e. standing, marching, running. The applicant's condition was found to not meet medical retention standards (i.e. medical disqualification for continued service). It is unclear why applicant was not separated in 2008 based on medical disqualification, but in 2010, it appears, presumably, that the bilateral foot condition stabilized or improved sufficiently to permit a trial of or return to military duty. 14. The medical advisory opinion was provided to the applicant to allow him the opportunity to provide additional evidence or a rebuttal. He responded and stated: I am submitting my comments concerning the advisory opinion that you sent me dated 17 January 2019. In section 2 it states that I served as a construction and asphalt operator in Iraq. This is not true, I was assigned to Troop E Second Squadron 278th RCT at Forward Operating Base Bernstein, Tuz Iraq. First, 2nd, and 3rd platoons were considered to be the infantry line units. I was assigned to the 2nd platoon. Originally, I was considered to be an infantry rifleman. Approximately half way through the deployment, I was moved to the position of Humvee driver. These three platoons were tasked with route clearing, QRF, and stand-by QRF. We were also tasked with raids, humanitarian missions, supply missions to Re-Trans sites, and elections observation and security. My platoon was only manned at half strength due to the other half of my platoon being assigned to Camp Caldwell. Even though these three platoons rotated our 3 main tasks, very few days passed without the stand-by QRF being stood up for the majority of the day. Also, in section 2 concerning my discharge on 5 July 2011, where it states failure to comply to official military correspondents. My only failure to comply was that they were demanding VA medical confirmation that I had a foot problem. VA for whatever reason denied my repeated claims without even an appointment or examination. I did however, provide my unit with paperwork from a civilian podiatrist, which Army regulations per medical command at a later date stated that it was all I was required to do. I also provided them with paperwork from the VA clinic in Savannah, TN. In section 3 should read I was told by my county VA representative that I could not appeal to the Army Review Board due to this being a National Guard issue. This explains my delay in finding out the correct information and filing my claim with the Army Review Board. As to section 4 I would like to point out that I passed a complete entrance physical in Memphis for my enlistment at that time, in December 2003. I had a complete pre-deployment physical in Smyrna, TN, and continuing medical examinations at Camp Shelby, MS. I was found to be deployable and had no foot problems at that time. It also states where I characterized my foot pain as constant, mild, sharp, aching, burning, and stabling was due to the fact that the questioner asked me to describe the range of my pain. As to the declination of medical retention dated 25 October 2005, I declined due to the fact that I thought that I was just tired, worn out and needed to go home and rest for a while, and did not realize that I had a medical problem. Due to my prior good health, I had never had a problem that would not go away with rest. As to this reviewer's note concerning my civilian occupation duties shortly after my return from Iraq, I accepted a promotion to Sgt [sergeant] in Hardin County Correctional Facility i.e. the jail side of the house, a position that was a desk sergeant supervising a shift in the jail. As to section 6, the reviewer statement that bilateral plantar fasciitis (AKA chronic residual bursitis, feet; AKA bilateral foot pain) is incorrect. Per a podiatrist and the VA medical annex at Lifespan in Savannah, TN, both state that these are not the same conditions, and I have been diagnosed with both. I contend that my condition is service related. As to any question as to why I did not go to sick call while I was in Iraq, it needs to be understood that my platoon had a severe manpower shortage, also due to the number of casualties suffered by my platoon. Early in my deployment, Specialist H and a medic were injured to the point that they had to be sent back stateside. On 13 August 2005, [three Soldiers] were killed in an IED [improvised explosive device] attack, also during this attack [Sergeant (SGT) D] was severely injured. At least 3 other members of the platoon received shrapnel wounds during other IED attacks. Under these conditions and the fact that I did not want anyone to take my turn going out of the gate, I would ignore my foot pain and continue to do my duty. Another SGT was supposed to be on duty on the night of 13 August 2005 but he decided to go to sick call, and SGT H had to fill his spot and was killed in his place that night. This SGT is suffering from PTSD to this day for his guilt. I refused to be that Soldier. A 50 year old Soldier serving in these conditions, wearing full body armor, and carrying a full combat load in Iraq. How could anyone believe that my foot condition is not service related. I will be glad to come to Washington D.C. to explain any other questions that you may have. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board agreed the applicant’s medical concerns were evaluated and treated, whereas requiring referral to the OTSG for medical board consideration is not warranted. 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. AR 635-40 establishes the Army physical 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. 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. 3. AR 40-501 provides that for an individual to be found unfit by reason of physical disability, the individual must be unable to perform the duties of his or her office, grade, rank, or rating. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service. It states that Soldiers will be referred to an MEB if diagnosed with plantar fasciitis or heel spur syndrome that is refractory to medical or surgical treatment, interferes with the satisfactory performance of military duties, or prevents the wearing of military footwear. b. Chapter 7 (Physical Profiling) provides: (1) The basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. (2) Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. (3). Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity. Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. (4) The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in AR 635-40. 4. AR 135-178 (ARNG and Army Reserve Enlisted Administrative Separations), chapter 15, provides that discharge will be accomplished when it has been determined that a Soldier is no longer qualified for retention by reason of medical unfitness unless the Soldier requests and is: a. Granted a waiver under AR 40-501, as applicable. b. Determined fit for duty under a non-duty related PEB fitness determination. c. Eligible for transfer to the Retired Reserve. 5. NGR 600-200 prescribes the criteria, policies, processes, procedures, and responsibilities to classify, assign, utilize, transfer within and between states, and separate ARNG enlisted Soldiers. a. Paragraph 6-32, sates commanders will notify Soldiers who do not meet medical retention standards of the intent to separate and afford them the opportunity to request a waiver for retention per AR 40-501, or to provide additional information from civilian doctors at their own expense. b. Paragraph 6-35l(8) states that if a commander suspected a Soldier may not be medically qualified for retention, he or she would direct the Soldier to report for a complete medical examination per AR 40-501. Commander who do not recommend retention will request the Soldier's discharge. 6. AR 15-185 (ABCMR), paragraph 2-9 (Burden of Proof) states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 7. AR 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 provides that 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. ABCMR Record of Proceedings (cont) AR20160012596 9 1