BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160013220 BOARD VOTE: ________ ________ ________ 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: 12 December 2017 DOCKET NUMBER: AR20160013220 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. ______________x_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160013220 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests medical retirement in lieu of the physical disability discharge with severance pay he received. He further requests a personal appearance before the Board. 2. The applicant states he had accrued both Reserve and active duty service time and he should be medically retired since he believes his Reserve service was not taken into consideration. 3. The applicant provides: * DD Form 368 (Request for Conditional Release), dated 18 May 2001 with associated documents * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 4 February 2004, with associated enlistment documents * approximately 20 military medical documents * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), dated 19 March 2013 * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 3 May 2013 * A letter from the Department of Physical Medicine, Madigan Army Medical Center, Joint Base Lewis-McChord, WA, dated 13 May 2013 * Enlisted Record Brief (ERB), brief date 2 July 2013 * Physical Disability Information Report, dated 6 September 2013 * Member Copy 1 of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 24 November 2013 * Department of Veterans Affairs (VA), Seattle Regional Office, Rating Decision, dated 4 February 2014 * VA Compensation Letter, dated 5 February 2014 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 U.S. Army Reserve (USAR) on 30 March 1992. 3. DA Form 368 shows he requested a conditional release in order to enlist in Regular Army on 18 May 2001. The applicant's request was approved and on 7 August 2001 he enlisted in the Regular Army. 4. The applicant reenlisted on 4 February 2004. He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 September 2007. 5. An MEB convened at Madigan Army Medical Center, Joint Base Lewis-McChord, WA, on 19 March 2013. a. The MEB Narrative Summary (NARSUM) indicates his chief complaint was low back pain, lumbar spine disc degeneration, which resulted in the issuance of a permanent physical profile and his referral to an MEB. b. The MEB concluded he did not meet medical retention standards and referred him to a PEB, based on the diagnosis of low back pain, lumbar spine disc degeneration (diagnosed by the QTC/VA Medical Examiner as degenerative disc disease, lumbar). The following other conditions were listed on the DA Form 3947; however, were considered as meeting retention standards: hypertension; left hip strain; degenerative arthritis of left ankle joints; and bilateral pes planus, asymptomatic. c. The MEB findings and recommendation were approved on 22 March 2013. d. He indicated did not agree with the MEB's findings and recommendation on 8 April 2013 and submitted an appeal. He further requested an impartial provider review of his medical evidence as it did not address the medical issue of his hearing. 6. The applicant was evaluated by the VA under the Integrated Disability Evaluation System (IDES) for a proposed rating on 24 April 2013. This rating proposed a 20 percent disability for the condition of degenerative disc disease of the lumbar spine. They further determined his hearing was not service connected and offered no diagnosis or proposed rating related to hearing. 7. An informal PEB convened on 3 May 2012, at Joint Base Lewis-McChord, WA, and considered the applicant's suitability for further service. It was determined that his diagnosed "low back pain, lumbar spine disc degeneration" with the onset of the condition occurring on 15 December 2010, prevented him from reasonably performing the duties required by his grade and military specialty. The PEB further determined that the following conditions meet retention standards: hypertension; left hip strain; degenerative arthritis of left ankle joints; and bilateral pes planus, asymptomatic. 8. The PEB recommended the applicant be given a disability rating of 20 percent with separation from the service with severance pay. The applicant non-concurred and demanded a formal hearing with personal appearance and appointed counsel on 17 May 2013. He requested the VA reconsider his disability ratings. 9. The applicant was informed by memorandum that his formal hearing was scheduled for 1 July 2013 at Madigan Army Medical Center, Joint Base Lewis-McChord, WA. However, by memorandum dated 1 July 2013, he stated: * after discussing his options with his legal counsel, he withdrew his demand for a formal PEB hearing scheduled for 1 July 2013 * he would not contest the informal PEB finding of unfit for duty, a rating of 20 percent (for the disability listed), and separation with severance pay * he also rescinded his request to have his unfitting disability ratings reviewed while in the IDES process 10. As a result of his withdrawal from a formal PEB hearing, the Secretary of the Army, through the U.S. Army Physical Disability Agency, approved the results of the informal PEB on 2 July 2013. 11. Orders 249-0031, issued by Directorate of Human Resources, Military Personnel Division, Joint Base Lewis-McChord, WA, on 6 September 2013, reassigned the applicant to the U.S. Army transition point. The orders stated: * he was being discharged from the Regular Army * his effective date of discharge was 24 November 2013 * he was authorized 20 percent disability severance pay in the pay grade of SSG based on 14 years and 1 day of service as computed under Title 10, U.S. Code, section 1208 12. The applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, by reason of disability with severance pay, non-combat (enhanced). His DD Form 214 confirms: * he completed 12 years, 3 months, and 18 days of net active service * he completed 7 months of total prior active service * he completed 7 years and 5 months of total prior inactive service * he received $87,616.40 in disability severance pay in conjunction with his discharge 13. The applicant provides: a. Approximately 20 military medical documents ranging from December 2010 through August 2012, which shows he was treated for several medical conditions to include low back pain. b. A letter from a Dr. K.B., of the Department of Physical Medicine, Madigan Army Medical Center, dated 13 May 2013, who cites the applicant's current medical condition of lumbar degenerative disease and his ongoing rehabilitation (physical therapy). c. A Physical Disability Information Report, Joint Base Lewis-McChord, WA, dated 6 September 2013, which shows he was rated as 20 percent disabled. d. A VA Rating Decision, dated 4 February 2014, and a VA Compensation Letter, dated 5 February 2014, which show he was evaluated and awarded compensation from the VA for the following conditions at a combined rating of 70 percent: obstructive sleep apnea (50); degenerative disc disease of the lumbar spine (20); left hip strain (10); degenerative arthritis of the left ankle (10); hypertension (10); flexion of the left thigh (0); and bilateral pes planus (0). The conditions of bilateral hearing loss, tinnitus, and left leg radiculopathy were not granted a service-connected disability rating. 14. In the processing of this case, an advisory opinion was obtained on 23 January 2017 from the Army Review Boards Agency (ARBA) Senior Medical Advisor. This official opined: a. Review of the applicant's electronic medical record (AHLTA) revealed clinical encounters from June 2006 through September 2013. b. His MEB reviewed a diagnosis of low back pain, lumbar spine disc degeneration which did not meet medical retention standards. His was further diagnosed with hypertension, left hip strain, degenerative arthritis of left ankle joints, and bilateral pes planus asymptomatic of which all conditions were deemed to have met medical retention standards. c. His PEB stated his low back pain, lumbar spine disc degeneration condition had its onset on 15 December 2010 while stationed in Brussels, Belgium. The condition prevented the performance of one of more common Soldier tasks and prevented him from functioning in his current MOS and assignment. He was evaluated at 20 percent disability. d. His VA Rating Decision, dated 4 February 2014, gave him a disability rating of 70 percent with service connection for obstructive sleep apnea, degenerative disc disease of the lumbar spine, left hip strain, degenerative arthritis of the left ankle, hypertension, limitation of flexion of the left thigh, and bilateral pes planus. e. The applicant did not meet medical retention standards for low back pain (lumbar spine disc degeneration or degenerative disc disease, lumbar) in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, 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. f. The applicant met medical retention standards for hypertension, left hip strain, degenerative arthritis of left ankle joints, bilateral pes planus asymptomatic (existed prior to service (EPTS)), obstructive sleep apnea, vision problems (EPTS), gastroesophageal reflux, and hypercholesterolemia in accordance with Army Regulation 40-501 and following the provisions set forth in Army Regulation 635-40 that were applicable to the applicant's era of service. g. 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 which would support a change to the character or reason for the discharge in this case. 15. The applicant was provided a copy of the advisory opinion on or about 25 January 2017 to afford him the opportunity to respond to its content. The applicant responded on the advisory opinion or about 27 February 2017, in a one-page typed statement, wherein he stated, in effect, he had accumulated over twenty years of service before his discharge, both Reserve and active, and he understood his disability award for under the rated minimum of thirty percent for retirement. If he was allowed to continue to his final enlistment he would have been within the eligible range for medical retirement. It is his understanding that, as a former Reserve Soldier, he would be entitled to disability retired pay when determined unfit for a permanent disability incurred or aggravated in the line of duty. He believes his total length of his service time should be considered and not just his active duty time. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. It is not an investigative body. 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 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. It provides that an MEB is 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 Army Regulation 40-501. 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 service. a. Paragraph 3-1 contains guidance on the standards of unfitness because of physical disability. It states 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 Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. b. Paragraph 3-5 contains guidance on rating disabilities. It states 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. Any nonratable defects or conditions will be listed on the PEB proceedings, but will be annotated as non-ratable. 4. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 5. 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. 6. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member on active duty for more than 30 days who has at least 20 years of service or a disability rated at least 30 percent. 7. Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member on active duty for more than 30 days who has less than 20 years of service and a disability rated less than 30 percent. 8. Title 10, U.S. Code, section 1208, provides for the purposes of retirement or separation for physical disability, a member of a regular component shall be credited with the service described in (a) or that described in (b), whichever is greater: (a) The service that he/she is considered to have for the purpose of separation, discharge, or retirement for length of service. (b) The sum of his/her active service as a member of the armed forces, a nurse, a reserve nurse, a contract surgeon, a contract dental surgeon, or an acting dental surgeon; his active service as a member of the National Oceanic and atmospheric Administration or the Public health Service; and his service while participating in exercises or performing duties under sections 502, 503, 504, and 505 of title 32. DISCUSSION: 1. The applicant requests medical retirement in lieu of his physical disability discharge with severance pay. 2. The evidence of record shows the applicant suffered from one medical condition, low back pain with lumbar spine disc degeneration, which rendered him unable to satisfactorily perform the duties of his grade and military occupational specialty. This medical condition occurred while he was a Regular Army Soldier. 3. The applicant was referred to an MEB because of his inability to physically perform in his MOS due to the condition stated above. Consequently, his records were evaluated by an MEB and he was ultimately referred to a PEB. The PEB found him medically unfit, rated his disabling condition at 20 percent, and recommended separation by reason of physical disability with severance pay. He non-concurred with the PEB findings and recommendation and requested a formal hearing. Subsequently, he waived his demand for a formal hearing and accepted the informal PEB findings and recommendations. 4. The applicant contends he accrued both Reserve and active duty service time and should be medically retired because his Reserve service was not taken into consideration. 5. In accordance with applicable laws and regulations, a member on active duty rated with a disability rating of less than 30 percent and with less than 20 years will be separated by physical disability with severance pay. Additionally, Title 10, USC, section 1208, states for the purposes of retirement or separation for physical disability, a member of a regular component shall be credited with service at the time he is considered for separation or the sum of his/her active service and his service while participating in exercises or performing duties under Title 32 (National Guard). 6. The applicant was provided orders that separated him as a regular component Soldier and computed his regular component service time as 14 years and 1 days in accordance with statutory requirements. The applicant's separation action with severance pay was accomplished in compliance with laws and regulations. 7. The ARBA Senior Medical Advisor's review of the available documentation found all his medical conditions were appropriately evaluated at the time of his discharge. The available documentation found no evidence of a medical disability or condition which would support changing the discharge in this case. 8. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. A formal hearing may be authorized by the ABCMR or by the ABCMR Director whenever justice requires. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013220 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013220 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2