ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 July 2019 DOCKET NUMBER: AR20160014430 APPLICANT REQUESTS: change his reason for separation from completion of required active service to medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA Form 21-4138 (Statement in Support of Claim * VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative) * VA Form 21-526 (Veteran’s Application for Compensation and/or Pension) * Department of Veterans Affairs (DVA) Rating Decision dated 7 June 2011 * DVA Entitlements dated 27 June 2011 and 13 February 2017 * DVA commissary and exchange privileges * medical records for the period of 12 April 2010 to 22 September 2016 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 that he received a regular discharge, but was rated at 60 percent disabled by the DVA, so he should have received a medical retirement. Especially because he is now 90 percent disabled by the DVA and he has not worked since leaving the Army. The Army did not provide him due process, also he was not aware that he could apply for a disability retirement. 3. The applicant provides: a. VA Form 21-526 dated 17 April 2010, the applicant applied for compensation and/or pension for: Disability Claim When did disability begin When treated Lower back condition 1 January 2007 1 January 2007 to present Right hip condition 1 January 2007 1 January 2007 to present Left/right Patellofemoral Syndrome 1 January 2007 1 January 2007 to present Left/right ankle condition 1 January 2008 1 January 2008 to present Right shoulder b. VA Form 21-4138 dated 25 May 2010, the applicant filed a claim with the Department of Veterans Affairs requesting additional medical conditions to be added to his previously submitted claim. * service connected Cervicalgia * vision problems (Hypermetropia) * tinnitus * allergic rhinitis * tendonitis * tension headaches c. VA rating decision dated 7 June 2011, shows that the applicant is a veteran from the Gulf War Era and served from 7 November 2006 to 2 July 2010. The VA service connected decision: Claimed Condition VA Condition Rating Effective Date Cervicalgia Cervical Myositis 20% 3 July 2010 Lower back condition Lumbar Myositis 20% 3 July 2010 Right shoulder Right shoulder impingement syndrome 10% 3 July 2010 Right hip condition Trochanteric bursitis 10% 3 July 2010 Right patellofemoral syndrome and tendonitis Right knee patellofemoral pain syndrome 10% 3 July 2010 Left patellofemoral syndrome and tendonitis Left knee patellofemoral pain syndrome 10% 3 July 2010 Constant tinnitus Constant tinnitus 10% 3 July 2010 Allergic rhinitis Allergic rhinitis 0% 3 July 2010 Chronic pansinusitis 0% 3 July 2010 Tension headaches Denied Right ankle condition Denied Left ankle condition Denied Hypermetropia Refractive erroris Denied d. DVA service connected compensation dated 27 June 2011, shows the applicant was awarded $2,004 from the overall or combined rating of 60 percent. The DVA does not add the individual percentages of each condition to determine a combined rating. The VA uses a combined rating table that considers the effect from the most serious to the least serious conditions. The applicant may be eligible for medical care by the VA health care system for any service connected disability. He may apply for medical care or treatment at the nearest medical facility. e. DVA entitlements to VA benefits dated 13 February 2017, the applicant will received $8,955.04 in DVA entitlements for: Issue/Contention Old Percentage New Percentage Effective Date Radiculopathy left upper extremity 20% 30 September 2016 Radiculopathy right lower extremity 10% 30 September 2016 Scar on right ankle 0% 18 July 2016 Right hip trochanteric bursitis with limitation of flexion 0% 30 September 2016 Right hip trochanteric bursitis with impairment of thigh 0% 30 September 2016 Radiculopathy left lower extremity 10% 30 September 2016 Radiculopathy right upper extremity 20% 30 September 2016 Dependent’s Educational Assistance Denied 30 September 2016 Posttraumatic stress disorder (PTSD) with unspecified depressive disorder 30% 70% 30 September 2016 Right ankle status post lateral reconstruction N/A 20% 29 October 2015 Right ankle status post lateral reconstruction with degenerative arthritis 20% 10% 12 January 2017 Cervical myositis with degenerative arthritis 20% 30% 30 September 2016 Allergic rhinitis 0% Continued Lumbar myositis with degenerative arthritis 40% Continued Tension headaches 10% Continued Obstructive sleep apnea 50% Continued Tinnitus 10% Continued Right knee patellofemoral pain 10% Continued Left knee patellofemoral pain 10% Continued Right trochanteric bursitis with limitation flexion 10% 0% 30 September 2016 Right hip trochanteric bursitis 0% 10% 12 January 2017 Individual unemployability Denied Left ankle condition Denied Hiatal hernia Denied f. The applicant’s overall or combined VA rating: Combined Rating Effective Date 70% 3 July 2010 80% 1 February 2014 90% 2 March 2014 100% 19 July 2016 90% 1 September 2016 100% 30 September 2016 g. DVA certificate of commissary and exchange privileges dated 30 March 2017. h. The applicant’s medical records for the period of 12 April 2010 to 22 September 2016. 4. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 7 November 2006. b. He served in Kuwait/Iraq from 6 October 2008 to 29 September 2009. c. He was honorably released from active duty for completion of required active service under provisions of chapter 4 (Separation for Expiration of Service Obligation), Army Regulation (AR) 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) by reason of having completed his required active service. He was transferred to the U.S. Army Reserves (USAR) Control Group (Reinforcement). His DD Form 214 shows he completed 3 years, 7 months, and 26 days of active service. d. Order D-10-422512 dated 21 October 2014 published by U.S. Army Human Resources Command, honorably discharged the applicant from the USAR under provisions of AR 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations) effective 21 October 2014. 5. In the processing of this case, a medical advisory opinion, dated 3 April 2019, was received from the Army Review Boards Agency Medical Advisor. The advisory official found that: a. Medical records indicate that at the time of his separation from the Army the applicant met military medical retention standards in accordance with AR 40-501 (Medical Service – Standards of Medical Fitness). b. A review of the applicant’s electronic VA medical records (JLV) indicates that the applicant is 100% service connected: 70% for PTSD, 50% for sleep apnea, 40% for lumbosacral or cervical strain, 10% paralysis of sciatic nerve, 20% for paralysis of upper radicular nerve group, 10% for limited motion of ankle, 10% for migraine headaches, and 10% for limited flexion of knee. c. The applicant was diagnosed with PTSD and sleep apnea after active duty service and his military medical records shows that he did not report any signs, symptoms or behaviors of PTSD while on active duty. d. The applicant was not on a permanent profile and was found to be fit for duty on his Expiration Term of Service (ETS) phase II physical with no physical or psychiatric complaints. e. VA finding of service connection does not automatically result in military medical retirement. The VA operates under different rules, laws and regulations when assigning disability percentages that the Department of Defense (DOD). The VA will compensate for all disabilities felt to be unsuiting conditions. The DOD does not compensate for unsuiting condition, only unfitting conditions. Based on the available military records, there is no indication the applicant suffered from an unfitting psychiatric or medical condition at the time of his discharge for the Army. The DOD does not compensate service members for anticipated future severity or potential complications of conditions that were incurred during active military service. f. Base on the information currently available, it is the opinion of the Agency Medical Advisor that a referral of the applicant’s records to Integrated Disability Evaluation System (IDES) for consideration of military medical retirement is not indicated at this time. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or additional comments. He did not respond. 7. By regulation (AR 635-200), a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. A Soldier enlisted or ordered to active duty normally will be discharged or release from active duty on the date he or she completes the period for which enlisted or ordered to active duty. A Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in entry level status and service is uncharacterized. 8. By regulation (AR 40-501), medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. If the profile is permanent the profiling officer must assess if the Soldier meets retention standards. Those Soldiers on active duty who do not meet retention standards must be referred to a medical evaluation board. 9. By law, the VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability. The findings of the VA as to disability conditions are not binding on the Army and do not require reassessment of earlier determinations. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. The medical advisory official noted the applicant did not have any boardable conditions during his period of service and recommended the denial of his request. The applicant was provided the opportunity to rebut the advisory; however, he did not respond. Based upon the preponderance of evidence, the Board agreed there is insufficient evidence to grant relief. 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. 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 (AR) 635-200 (Personnel Separation – Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 4 states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. A Soldier enlisted or ordered to active duty normally will be discharged or release from active duty on the date he or she completes the period for which enlisted or ordered to active duty. A Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in entry level status and service is uncharacterized. 3. AR 40-501 (Standards of Medical Fitness), in effect at the time, provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. a. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), states gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. Soldiers with conditions listed in this chapter will be evaluated by a medical board and will be referred to a physical evaluation board (PEB). b. AR 40-501 (Standards of Medical Fitness), governs medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD. Ratings can range from 0% to 100%, rising in increments of 10%. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), prescribes policy and implements the requirements of chapter 61 (Retirement or Separation for Physical Disability) of Title 10, U.S. Code (USC). The regulation states: a. 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. 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. b. Based upon the requirements of section 1203 of chapter 61, Title 10, USC, states Soldiers, not otherwise eligible for military retirement, with a disability not the result of intentional misconduct or willful neglect, and with less than a 30 percent disability rating, will receive severance pay. c. The VA Schedule for Rating Disabilities (VASRD) is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Because of differences between Army and VA applications of rating policies, differences in ratings may result. Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition at the time of separation. 5. Title 38, USC, 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. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160014430 7 1