ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 APRIL 2019 DOCKET NUMBER: AR20160013952 APPLICANT REQUESTS: reconsideration of Army Board for Correction of Military Records (ABCMR) Docket Number AR20150002254, dated 15 October 2015, wherein he requests processing through the disability evaluation system with award of medical retirement vice transfer to the Retired Reserve with retired pay effective on his 60th birthdate (age 60). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement dated 2 August 2016 * Permanent Orders 129-2273, dated 8 May 2003 awarded Purple Heart * DA Form 4980-10 (Purple Heart Certificate) awarded for action on 31 July 2003 * DA Form 4980-10 (Purple Heart Certificate) awarded for action on 4 January 2004 * Standard Form 600 (Chronological Record of Medical Care) 4 pages various dates * DA Form 2173 (Statement of Medical Examination and Duty Status) dated 25 May 2004 * DA Form 2173 dated 26 May 2004 * two Headquarters (HQ), U.S. Army Medical Department Activity, Fort Benning, Georgia, Medical Treatment Letters of Instruction [Applicant] dated 26 May 2004 * HQ, U.S. Army Medical Department Activity, Fort Benning, Georgia, Medical Treatment Letter of Instruction [Applicant] dated 16 June 2004 * Orders 147-2284 issued by HQ, U.S. Infantry Center, Fort Benning, Georgia * DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 25 June 2004 * Alabama Army National Guard (ALARNG) Medical Detachment Memorandum for [Applicant]; subject: Permanent Profile and Medical Retention Status, dated 11 May 2005 * ALARNG Joint Forces Headquarters Memorandum for [Applicant]; subject: Medical Fitness Standards for Retention, dated 16 May 2005 * National Guard Bureau Form 22 (Report of Separation and Record of Service) with a separation date of 1 August 2005 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150002254 on 15 October 2015. 2. The applicant is appealing the decision in Army Docket Number AR20150002254 because he believes the record to be in error or unjust due to the fact that he has supporting medical evidence showing he had injuries he sustained in combat that were not previously presented to the Board. He asks the Board to review his new medical evidence for its consideration by the disability evaluation system and granting him full medical retirement. 3. The applicant enlisted in the ALARNG on 16 February 1989. He was ordered to active duty to complete training and awarded military occupational specialty 95B (Military Police) effective 25 January 1990. Following school, he was ordered to active duty in support of Operations Desert Storm and Desert Shield serving in Southwest Asia from 9 January to 6 May 1991. 4. On 15 March 2003 by Orders 066-177 he was mobilized as a member of his military police unit of the ALARNG. He trained at Fort Benning, Georgia prior to his deployment in support of Operation Enduring Freedom. During his training he sprained and/or fractured his ankle. [His paper service treatment medical records are not available for the Board’s review. However, the applicant provided selected excerpts from his service treatment medical records.] 5. He deployed to Southwest Asia serving in Kuwait from 27 May to 17 June 2003 and then in Iraq from 17 June 2003 to 25 May 2004. 6. He provided two Purple Heart Certificates showing he was awarded them by Permanent Orders 129-2273, dated 8 May 2003, for "action on 31 July 2003" and by Permanent Orders 051-003, dated 20 February 2004, for "action on 4 January 2004." 7. His record contains approved DA Forms 2173. He provided only page 1 as supporting evidence with his application. These forms show that upon his return to Fort Benning, Georgia his medical treatment for post-traumatic stress disorder and an ankle injury were documented. He injured his ankle in March 2003 while in training prior to deployment and then reinjured it when either a rocket propelled grenade or improvised explosive device denoted near his vehicle during convoy operations. [No specific date or location was provided for the denotation during combat operations nor were medical records available to support the date and type of injury.] The second DA Form 2173 for PTSD, completed on 26 May 2004, states "while mobilized to Iraq on 31 Mar 03 [31 March 2003] his convoy was hit by an IED [improved explosive device] which caused reoccurring nightmares." [Of note, the applicant did not enter Iraq until 17 June 2003.] 8. In addition to the DA Forms 2173, the Fort Benning, Georgia Army Medical Department Activity provided the applicant with three letters of instruction. The letters informed him that by law he was entitled to health care for 180 days upon his release from active duty (REFRAD) at any Uniformed Service Medical Treatment Facility (MTF). Upon the conclusion of the 180 days, he was further informed he was authorized care for any in line of duty injury, illness or disease at any Department of Veterans Affairs (VA) or Department of Defense (DoD) MTF. Each letter states he was tested or evaluated at Martin Army Community Hospital, Fort Benning, Georgia and that responsibility for his continued medical treatment was transferred to the VA hospital in Tuskegee, Alabama. His diagnoses were PTSD and right ankle fracture. The final instruction stated if his treatment was to take longer than 180 days, he could request to be returned to active duty. He was advised to contact his home unit or the Fort Benning points of contact shown on his letters. 9. On 26 May 2004, Orders 147-2284 were issued to the applicant releasing him from active duty, not by reason of physical disability, and reassigning him to his State ARNG unit. The orders state he had returned from deployment and completed the required period of active duty for which he was ordered to perform. He was authorized 180 days of medical care at government cost post REFRAD as authorized by law. 10. On 25 June 2004, the applicant was REFRAD and issued a DD Form 214 showing he served on active duty for 1 year, 3 months and 11 days this period. His DD Form 214 contains the following pertinent entries: * Item 23 (Type of Separation) – REFRAD * Item 24 (Character of Service) – Honorable * Item 25 (Separation Authority) – Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4 * Item 28 (Narrative Reason for Separation) – Completion of required active service 11. The applicant provided a memorandum from the ALARNG State Surgeon’s Office, dated 11 May 2005, informing him the Medical Readiness Team had considered all medical information available in his case file and the result was issuance of a profile of PUHLES 1 1 3 1 1 3 with his lower extremities and psychological factor receiving ratings of "3." Further, the listed medical conditions prevent him from meeting medical retention standards under the provisions of Army Regulation 40-501 (Standards of Medical Fitness) Chapter 3, (Medical Fitness Standards for Retention), and his current medical condition and/or physical defects disqualified him from further military service. * PTSD controlled with medication (Chapter 3, paragraphs 32b, c, 33b, c) * Right ankle pain, chronic with osteoarthritis (Chapter 3, paragraph 14b, f(1) 12. The State Chief of Medical Services for the ALARNG recommended referral to a [non-duty] physical evaluation board (PEB) for processing through the disability evaluation system. On 16 May 2005, the State Military Personnel Office issued him a letter informing him of his options based on the letter of 11 May 2005. He had options: * accept the findings and be discharged (from the ARNG) * if he had 15 years but less than 20 years of creditable service for retirement, he would be eligible to receive retirement benefits at age 60 upon issuance of a retirement eligibility letter * request a non-duty [not on active duty] PEB which would determine his fitness for further military service * if he chose the non-duty PEB, he was told to submit a written request and provide all pertinent information * failure to provide medical information for the non-duty PEB, would result in a medical discharge [due to findings of 11 May 2005] 13. Also on 16 May 2005, the State HQ issued the applicant his 15-Year Letter or Notification of Eligibility for Retired Pay at Age 60 letter. This letter informed him he had completed 15 years of qualifying service for non-regular retirement but not more than 20 years and that he had made an election to request a transfer to the Retired Reserve. 14. On 1 August 2005, the applicant was issued an NGB Form 22 showing he was honorably discharged from the ARNG of the United States and transferred to the Retired Reserve. 15. On 16 October 2015, the ABCMR granted the applicant partial relief. It denied his request for correcting his record to show he was medically retired. It did grant him some relief by directing the issuance of his letter of eligibility for retirement based on 15 qualifying years for nonregular retirement at age 60. Subsequently, the ALARNG provided said letter and it is filed in his personnel record. 16. In the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency Senior Medical Advisor. There are two separation points within his record warranting review. a. The first is his REFRAD from active duty on 25 June 2004 wherein the advisory found the available documentation including the medical evidence provided by the applicant showed he met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. Thus for this specific period of active duty, there is no available evidence supporting a change to his narrative reason for separation. He was released with follow-on appointments at the VA for continued medical treatment of right ankle pain and PTSD symptoms post service as required by law. [During leave, the applicant was hospitalized on a psychiatric ward. He had accompanied the body of his best friend home to AL for burial. The discharge diagnosis was adjustment disorder with mixed disturbance of emotion and conduct. He was cleared to return to Iraq.] b. The second separation point occurred when the ALARNG Medical Office reviewed his evidence which presumes they had access to his VA Compensation and Pension Examinations. At this point in 2005, the applicant was not on active duty for 30 or more days. He was a member of his ALARNG unit serving as a drilling reservist. Upon review of medical evidence, it was determined the applicant did not meet medical retention standards for PTSD and right ankle pain. He was advised of his rights and actions available to him including electing transfer to the Retired Reserve because he had 20 or more years of nonregular service for a nonregular retirement at age 60. He was also advised he could elect a non-duty physical evaluation board for a determination of fitness for continued duty as a drilling Reservist. The applicant elected transfer to the Retired Reserve and the evidence of record shows he was transferred to the Retired Reserve. c. The applicant is currently VA service-connected for the following diagnoses: * PTSD – 100 percent * migraine headaches – 30 percent * lumbosacral or cervical strain – 20 percent * limited motion of ankle – 10 percent * limited flexion of knee – 10 percent * tinnitus – 10 percent * loss of field of vision – 10 percent * deformity of penis – 0 percent d. A copy of the complete medical advisory was provided to the Board for their review and consideration. 17. The applicant was provided a copy of the advisory opinion on 22 June 2018 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. The medical advisory opinion listed regulatory guidance as facts of the applicant’s case was explained, and the advisory official recommended denial of the application. The Board dully considered the applicant’s medical concerns and the medical evaluation procedures ensuring he received due process even though he did not provide a rebuttal to the advisory opinion. Based upon the preponderance of evidence, the Board agreed there was no error or injustice in this case, and do not recommend amending the previous Board’s decision. 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 to amend the decision of the ABCMR set forth in Docket Number AR20150002254, dated 15 October 2015. 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. Army Regulation 635-40, in effect at the time, established the Army Physical Disability Evaluation System (PDES) and set 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. This regulation is applicable to Regular Army and Selected Reserve Soldiers. 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. Soldiers are referred to the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, when a Soldier receives a permanent medical profile, P3 or P4, and is referred by a Military Occupational Specialty (MOS) Medical Retention Board, when they are command- referred for a fitness-for-duty medical examination, and or they are referred by the U.S. Army, Human Resources Command. b. The PDES assessment process involves two distinct stages: The MEB and the physical evaluation board (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 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 are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. 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. d. Chapter 8 (Reserve Components) states that in order for soldiers of the Reserve Component to be compensated for disabilities incurred while performing duty for 30 days or less, to include individual training, there must be a determination by the PEB that the unfitting condition was the proximate result of performing duty. This determination is different from a line of duty determination which establishes whether the soldier was in a duty status at the time the disability was incurred and whether misconduct or gross negligence was involved. e. Medical processing when a commander or other proper authority believes that a Soldier not on extended active duty is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability, the commander will refer the soldier for medical evaluation according to Army Regulation 40-501 or National Guard Regulation (NGR) 40-3 (Medical Care for Army National Guard Members). 2. NGR 40-3 outlines the medical care to which Army National Guard (ARNG) personnel not on active Federal service are entitled. It prescribes the policies and procedures for obtaining such care and establishes the responsibilities for the provisions of care. Conduct of MEB and referral of case to a PEB will be according to the procedures of chapter 4, section III. If the soldier is not eligible for referral to a PEB, the MTF will forward the MEB to the soldier's unit commander for disposition under applicable regulations. If eligible for referral to a PEB, the soldier may remain, with his or her consent, under control of the MTF during disability processing. The PEB must be convinced that the soldier's status and entitlement to processing have been documented in the file. 3. Army Regulation 40-501, dated 19 February 2004, provides guidance and policy for Soldiers pending separation for failing to meet medical retention standards. National Guard Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Soldiers with nonduty related medical conditions, MEBs from Active Army MTFs are not required and cases are not sent through the PEB liaison officers at the MTFs. Once a Soldier requests in writing that his/her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB from the Soldier’s unit (in accordance with guidance provided by National Guard Bureau). The documentation will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. Army Regulation 635-40 governs the administrative requirements for such a referral. 4. Army Regulation 40-501 provides medical retention standards and is used by MEBs to determine which medical conditions will be referred to a physical evaluation board (PEB). Paragraph 3-3 states Soldiers [on active duty for more than 30 days] whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40. The PEB will make the determination of fitness or unfitness. a. Paragraph 3-31 (Disorders with psychotic features) the causes for referral to an MEB include diagnosed psychiatric conditions that fail to respond to treatment or restore the Soldier to full function with 1 year of onset of treatment. Mental disorders not secondary to intoxication, infections, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with social adjustment or with duty performance. b. Paragraph 3-32 (Mood disorders) the causes for referral to an MEB include persistent or recurrence of symptoms sufficient to require extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance. c. Paragraph 3-33 (Anxiety, somatoform or dissociative disorders) the causes for referral to an MEB include persistent or recurrence of symptoms require extended or recurrent hospitalization, limitations of duty or a duty protected environment or interfering with effective military performance. //NOTHING FOLLOWS//