IN THE CASE OF: BOARD DATE: 9 September 2019 DOCKET NUMBER: AR20160013287 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 IN THE CASE OF: BOARD DATE: 9 September 2019 DOCKET NUMBER: AR20160013287 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests, in effect, to go through the Integrated Disability Evaluation System (IDES) for a medical disability retirement. 2. The applicant states he was sent to the retired reserves while he was in the process of trying to get scheduled for a Physical Evaluation Board (PEB). His case was delayed until he reached his mandatory removal date and then his case was dismissed. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) with supporting document(s): * Applicant's statement, record of events * Emails, Staff Sergeant (SSG) X___, Army Medical Management Center, dated 20 July 2015, 24 August 2015, and 17 September 2015 * Emails, Ms. X___, U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 30 October 2015 and 6 November 2015 * Emails, Ms. X___, HRC, dated 28 January 2018, 28 April 2016, and 16 June 2016 * Memorandum, HRC, dated 9 May 2016, subject: Disposition Election for Medical Disqualification * Memorandum, HRC, dated 9 May 2016, subject: Line of Duty Investigation – applicant (Individual Ready Reserve) * Memorandum, U.S. Army PEB, Fort Sam Houston, TX dated 9 June 2016, subject: Administrative Termination of PEB Proceedings for applicant 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * DA Form 67-9 (Officer Evaluation Report), for period ending 13 September 2013 * DA Forms 67-10-2 (Field Grade Plate (O4 – O5; CW3 – CW5) Officer Evaluation Report), for period ending 15 January 2015, 4 June 2015, and 1 April 2016 * Orders C-06-607590, U.S. Army HRC, Fort Knox, Kentucky, dated 7 June 2016 * On-Line submission to White House, applicant, dated 15 August 2016 * General Correspondence White House, dated 15 October 2016 * Letter, Army Review Boards Agency (ARBA), dated 18 October 2016 * Memorandum, ARBA, dated 16 August 2018, subject: Medical Advisory Opinion - applicant REFERENCES: 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) established the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC), chapter 61, and DODD 1332.18. 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, this regulation provides for disposition of the Soldier according to applicable laws and regulations. a. The DES begins when a Soldier is issued a permanent profile approved in accordance with provision of Army Regulation 40-501 (Standards of Medical Fitness) and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears not to meet medical retention standards in accordance with Army Regulations 40-501. b. Paragraph 4-34 (Reserve Component non-duty related process), affords Reserve Component Soldiers not on call to active duty of more than 30 days and who are pending separation by the Reserve Component for non-duty related medical conditions to enter the Disability Evaluation System for a determination of fitness and whether the condition is duty-related. Soldiers with non-duty related impairments are referred to the PEB for solely a fitness determination, but not a determination of eligibility for disability benefits. c. Paragraph 5-5 (Presumption of Fitness) states the DES compensates disabilities when they cause or contribute to career termination. Service members who are pending retirement at the time they are referred for disability evaluation are presumed fit for military Service. The presumption of fitness rule will not be applied to Reserve Component member referred to the non-duty related process. DISCUSSION: 1. While 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 was in the Army Reserve as a Drilling Individual Mobilization Augmentee (DIMA). 3. He had entered active duty on 22 October 2009 and was honorably released from active duty on 27 December 2010. He was advanced to lieutenant colonel on 30 January 2010. 4. He reached his Mandatory Removal Date (MRD) as an officer and was transferred to the Retired Reserve on 1 June 2016. The orders list the reason as “reached maximum authorized years of service.” 5. On 15 August 2016 he submitted a request to the White House asking for due process and to go through the medical board process. 6. The ARBA Senior Medical Advisor rendered a medical advisory opinion on 16 August 2018 wherein stated: a. 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, medical disqualification or retirement in this case. b. The applicant completed his last period of active federal service in 2010. The applicant served successfully (presumption of medical fitness) completed his final U.S. Army Reserve 2-week Active Duty for Training, Outside Continental United States (OCONUS) in Japan, June 2015. c. After comprehensive review of the medical and other records, the ARBA Medical Advisor concludes that there is insufficient cause to recommend DES processing, i.e. MEB/PEB in this case. d. A Non-Duty PEB might have been done earlier prior to the applicant's mandatory retirement date. Based on the medical disqualification, the applicant may or may not have been found fit for continued service (until is mandatory retirement date). If found fit, he would have transferred to the Retired Reserve on 1 June 2016. If found unfit, he would have transferred to the Retired Reserve before 1 June 2016. e. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. That role and authority granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. 6. The applicant was provided a copy of this advisory opinion on 12 March 2018, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 7. By regulation (AR 635-40), the disability evaluation system (DES) begins when a Soldier is issued a permanent profile approved and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears not to meet medical retention standards. a. A non-duty related process affords Reserve Component (RC) Soldiers not on call to active duty of more than 30 days and who are pending separation by the RC for non-duty related medical conditions to enter the DES for a determination of fitness and whether the condition is duty-related. Soldiers with non-duty related impairments are referred to the PEB for solely a fitness determination, but not a determination of eligibility for disability benefits. b. The DES compensates disabilities when they cause or contribute to career termination. Service members who are pending retirement at the time they are referred for disability evaluation are presumed fit for military Service. The presumption of fitness rule will not be applied to RC member referred to the non- duty related process. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013287 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2