ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20160014668 APPLICANT REQUESTS: physical disability retirement in lieu of honorable discharge due to physical disability with severance pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored letter * two DA Forms 638 (Recommendation for Award) * partial DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), with through date 30 November 2012 * Separation Health Assessment Disability Benefits Questionnaire, dated 24 November 2014 * Initial Post-Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire, dated 3 December 2014 * Initial Evaluation of Residuals of Traumatic Brain Injury (I-TBI) Disability Benefits Questionnaire, dated 3 December 2014 * partial Medical Evaluation Board (MEB) Narrative Summary (NARSUM), dated 15 December 2014 * self-authored memorandum requesting impartial medical review, dated 5 January 2015 * letter addressed to the Physical Evaluation Board (PEB) President, dated 6 January 2015 * Impartial Medical Review, dated 14 January 2015 * Department of Veterans Affairs (VA) Disability Evaluation System (DES) Proposed Rating, dated 24 February 2015 * Delta Battery, 3rd Battalion, 2nd Air Defense Artillery Memorandum for Record, dated 31 March 2015 * U.S. Army Installation Management Command, Orders 085-1305, dated 26 March 2015 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Army Review Boards Agency (ARBA) letter, dated 18 October 2016 * service and VA medical records in excess of 1,700 pages FACTS: 1. The applicant states: a. His various medical conditions were not fully evaluated by the MEB. He believes the MEB process was conducted too hastily and unfairly. In the military medical records he made available, the Board can see that he has multiple medical conditions caused directly by his Army Infantry career. b. His medical conditions are as follows: * bilateral pes-planus (flat feet) and bilateral plantar fasciitis (inflammation of the ligament connecting the heel bone to the toes) * lumbar spine degenerative disc disease and degenerative joint disease * cervical spine degenerative joint disease * PTSD * TBI c. He tried to assure that these injuries were considered during his MEB process and counted toward a medical retirement, but as can be seen, that was a misguided attempt on his part. He has attached documented episodes in awards as evidence of his TBI and PTSD, but this evidence didn’t help him at the time. His former first sergeant produced a letter during the MEB/DES process explaining his infantry duty after the Board questioned his Infantry career. Even an expiration term of service (ETS) award was denied to him and he truly believes he deserves a better judgment. d. He would greatly appreciate an impartial opinion while evaluating his medical conditions and a reexamination of the possibility of changing his medical discharge from the Army to medical retirement. 2. The applicant enlisted in the Regular Army on 24 April 2007 and was awarded the military occupational specialty (MOS) 11B (Infantryman). 3. He served in Afghanistan from 9 January 2009 through 11 November 2009, where among other honors, he was awarded the Army Commendation Medal (ARCOM). He provided a copy of the DA Form 638, dated 22 August 2009, awarding him the ARCOM, which lists the following among his achievements: a. He performed the duties of an M240 Machine Gun Ammo Bearer while conducting operations in support of Operation Enduring Freedom (OEF). While on patrol, he maintained outstanding patrol discipline and ensure he remained situationally aware at all times. b. He displayed outstanding intestinal fortitude while conducting over 200 combat patrols in excess of 8,000 feet and spanning over 2,100 kilometers. His physical endurance allowed his gun team, squad, and platoon to successfully conduct operations in consistently arduous terrain. Many of these patrols consisted of overwatch and observation points, ambushes, baited interdictions, and raids, to include support for several Special Forces missions c. He set the example for his fellow Soldiers through over six enemy attacks against rocket propelled grenades (RPGs), machine gun fire, small arms fire, and 107 millimeter ballistic missile rockets, at all times maintaining proper fire control, positive identification, and general Soldier discipline. The anti-Afghan fighters were forced to displace due to his accurate and effective machine gun fire. He successfully maneuvered in support of adjacent platoons and squads which effectively deterred the enemies’ attack and any counter-attacks. 4. He again served in Afghanistan 19 September 2011 through 26 July 2012, where he was awarded the Combat Infantryman Badge for personally engaging or being engaged by the enemy on 25 October 2011 and a second ARCOM. He provided a copy of the DA Form 638, dated 24 April 2012, awarding him his second ARCOM, which lists the following among his achievements: a. While deployed to Chakh District, Logar Province, Afghanistan, in support of OEF, he excelled while operating as a squad leader, leading his squad on over 250 dismounted patrols while partnering with Afghanistan National Army, furthering their ability to operate independently. b. He exemplified the warrior ethos while reacting to contact on over 30 separate occasions. He consistently displayed courage under fire and the will to close with and destroy the enemy. His ability to lead Soldiers and meet the enemy head on resulted in the capture of multiple known and suspected insurgents. c. His bravery was a credit to his platoon and the company. Because of his willingness to protect his men, he was exposed to a grenade blast in which shrapnel tore through his clothing and his equipment. He strived to complete the mission, even in the face of a persistent enemy. 5. He provided page 1 of 2 of his NCOER covering the period 1 December 2011 through 30 November 2012, which shows: * his MOS was 11B * he lead and supervised a three-man Light Infantry Team in support of OEF * he continuously put himself in harm’s way to protect the welfare of his Soldiers * he declined early leave from Afghanistan to remain with his Soldiers and unit 6. A military Medical Record, dated 2 January 2012, shows he was examined at the Charkh Aid Station in Afghanistan on the date of the form and screened for TBI. It shows: * he reported the reason for his visit was he was 5 meters away from a grenade blast while out on patrol that morning and he felt something his right leg and otherwise felt fine * he had some ringing in both ears, but denied any loss of consciousness, amnesia, altered mental state, headache, shortness of breath, nausea/vomiting or ear pain/bleeding/discharge * on his skin a small area of a welt was visible on the posterolateral aspect of his right calf approximately 2 cm x 1cm in size; his skin was intact and no other marks or abrasions were identified * all other physical findings including vital signs, head, neck, eyes, ears, nose, throat, lungs, cardiovascular system, abdomen, musculoskeletal system and neurological system were normal 7. An Enlisted Record Brief shows the applicant was reclassified to MOS 14T (Patriot Operator/Maintainer), effective 11 February 2013. The complete facts and circumstances surrounding his reclassification are not in his available records for review. 8. He provided three questionnaires, a Separation Health Assessment Disability Benefits Questionnaire, dated 11 November 2014, an Initial PTSD Disability Benefits Questionnaire, dated 3 December 2014, and an Initial Evaluation of Residuals of TBI Disability Benefits Questionnaire, dated 3 December 2014. a. The Separation Health Assessment Disability Benefits Questionnaire, dated 11 November 2014, shows the applicant marked “yes” to complaints of the sinuses, ears, lungs and chest, vascular, annus and rectum, abdomen and viscera, genitourinary, upper extremities, lower extremities, feet, spine, neurological, psychiatric (PTSD). The exam found the arches of his feet were abnormal due to pes planus and the other annotated conditions were found normal. b. The Initial PTSD Disability Benefits Questionnaire, dated 3 December 2014, shows the applicant was diagnosed with PTSD, major depressive disorder, recurrent, severe without psychotic features, cognitive impairment, TBI and had occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. The applicant endorsed having the related symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. Based on the examination, he needed to seek follow-up treatment including adequate medication and outpatient counseling. He was not deemed to pose any threat of danger or injury to self or others. c. The Initial Evaluation of Residuals of TBI Disability Benefits Questionnaire, dated 3 December 2014, shows the applicant was diagnosed with TBI in 2014. He indicated complaints of mild memory loss, mild visual spatial orientation impairment, and subjective symptoms of mental, physical, or neurological conditions attributable to TBI including headaches and PTSD. The form shows neuropsychological testing had not been performed. 9. He provided a partial MEB NARSUM, dated 15 December 2014 which shows: a. He did not meet medical retention standards per Army Regulation 40-501 (Standards of Medical Fitness) for left knee pain related to degenerative joint disease status post-surgery on his left knee. b. He met medical retention standards for the following diagnoses: TBI, PTSD, major depressive disorder, recurrent, severe without psychotic features, cognitive impairment, gastroesophageal reflux disease, chronic sinusitis, left hip strain, right knee patellofemoral syndrome, bilateral shin splints, bilateral ankle sprain, bilateral pes planus, bilateral plantar fasciitis, degenerative joint disease cervical spine, degenerative disc and joint disease lumbar spine, intervertebral disc syndrome left sciatic nerve, and erectile dysfunction. 10. Per a self-authored memorandum, dated 5 January 2015, the applicant requested an impartial medical review be conducted by an impartial provider, appointed as an independent source of review to advise and counsel him about whether the findings and recommendations of the MEB adequately reflected the complete spectrum of his injuries and illnesses. He specifically requested review of his behavioral health conditions to determine whether the VA diagnoses, including PTSD, failed to meet medical retention standards. 11. On 6 January 2015, First Sergeant (1SG) X X , composed a letter to the President of the Physical Evaluation Board (PEB), regarding the applicant. It states: * he knew the applicant since April 2010, when the applicant served under him as a rifle squad leader and they had daily contact with each other * he observed the applicant conduct daily physical training in preparation for their deployment and various intensive training cycles such as long movements over varying terrain carrying loads up to 100 pounds on foot over distances from 6-25 miles * they also conducted 3-5 mile runs at a 7-8 minute mile pace twice a week * this is the standard training across Light Infantry Units in the Army and the applicant performed this type of training for 6 years, from the time he entered the U.S. Army until he was reclassified to Air Defense Artillery * the applicant was reclassified out of his Infantry MOS because his physical condition interfered with his ability to continue to perform that type of training and mission set * the applicant was an excellent NCO and went above and beyond to perform his duties and care for his Soldiers and his past role as an Infantryman should be given the utmost consideration when determining the cause of his injuries 12. An Impartial Medical Review, dated 14 January 2015, and conducted by an IDES Psychologist at Fort Sill, OK, states in pertinent part: a. The applicant began receiving treatment for PTSD on 20 November 2014. Because of less than 2 months of treatment, the impact of treatment on his condition could not be determined. b. His commander did not observe a PTSD impact on the applicant’s PMOS duty performance. His commander described his functional ability as follows: he had no difficulty making complex or unfamiliar decisions; did not display any inappropriate social interactions and did not display behaviors interfering with work place interactions or performance of his MOS such as being irritable, impulsive, unpredictable, unmotivated, verbally aggressive, physically aggressive, apathetic, moody, etc. c. Although a psychiatrist diagnosed the applicant with PTSD, he was never issued a physical profile for a mental health condition and there is no evidence his PTSD impacted his duty performance, or required accommodations or duty in a protected environment. His commander recommended not retaining the applicant in the Army due to his physical limitations. The applicant received 29 physical profiles since 20 April 2011 for his physical conditions and not one of them was for a behavioral health condition. d. After a thorough review of the applicant’s electronic medical records and other documentation, there is a lack of evidence to support the VA diagnoses of PTSD, major depressive disorder, cognitive impairment, and TBI as being medically unacceptable. The records do not support recurrent or extended hospitalizations, significant limitations to duty, or significant interference to duty from a behavioral health condition. Thus, from a psychiatric perspective, the applicant was deemed to meet Army medical retention standards for behavioral health. e. There are major discrepancies between the applicant’s self-reported symptoms given to the VA examiner and his self-reported symptoms documented in his electronic treatment record. The symptoms given to the VA examiner are of such severity that the examiner rated the applicant’s occupational and social impairment as with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. The applicant does not provide any behavioral examples that support such a degree of severity. f. In the opinion of the impartial medical reviewer, TBI, cognitive impairment, major depressive disorder, and PTSD were all determined to have been medically acceptable and meeting the retention standards of Army Regulation 40-501. 13. A VA DES Proposed Rating, dated 24 February 2015 shows in accordance with an associated DES claim from 30 October 2014, the proposed service-connected combined evaluation for DES purposes was the following: a. 100 percent for bilateral pes planus and bilateral plantar fasciitis; left and right shoulder impingement; radiculopathy of the left and right upper extremity due to cervical spine degenerative joint disease, carpal syndrome, peripheral neuropathy all extremities; radiculopathy of the left and right lower extremity due to lumbar spine degenerative disc disease and degenerative joint disease; right knee patella-femoral syndrome; left ankle sprain one painful scar status post right elbow surgery and left hip strain. b. Right ear hearing loss, TBI, and PTSD were proposed DES not service- connected. 14. A DA Form 199 (Informal PEB Proceedings) shows: * a PEB convened on 9 March 2015 * the PEB found the applicant physically unfit and recommended a rating of 10 percent and that his disposition be separated with severance pay * the 10 percent disability rating was for left knee degenerative joint disease post- surgery * he was deemed unfit because his disability prevented him from reasonable performance of his MOS * it was determined all other conditions met retention standards and did not cause physical profile limitations of functional activities or performance issues * the applicant concurred with the findings and waived a formal hearing of his case on 12 March 2015 15. The applicant provided a memorandum, dated 31 March 2015, signed by his immediate commander stating he was not being recommended for an ETS award because restrictive physical profiles kept him from qualifying with his personally assigned weapon in over 1 year and his inability to fulfill the necessary tasks for his MOS. 16. His DD Form 214 shows he was honorably discharged from the Army on 30 May 2015 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to a disability (combat zone) with severance pay after 8 years, 1 month, and 7 days of net active service. 17. On 21 March 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion, stating there is insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and thus no additional disability rating(s) are recommended. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 18. The applicant was provided a copy of the advisory opinion on 26 March 2018 and given an opportunity to submit comments, but did not respond. 19. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 20. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. 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. 21. Army Regulation 635-40 establishes the Army 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. 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. Paragraph 3-2 states 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 military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 22. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 23. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service- connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statement and the medical advisory opinion, the Board found insufficient evidence to grant relief. The Board agreed with the medical advisory opinion that the applicant was medically evaluated during his period of service and that he met medical retention standards for 9 many of his conditions, including conditions with his feet, spinal degenerative joint disease, PTSD, TBI, and other behavioral health conditions at the time of discharge; the applicant’s medical and service records do not indicate that his medical concerns, including PTSD and TBI, were severe enough for the MEB/PEB process to find them unfitting and award him a medical retirement at time of discharge. Additionally, the applicant’s NCOERs provided no evidence of PTSD or TBI or other unfitting medical conditions and reflected that he was able to perform his duties in a satisfactory manner. The Board agreed that the applicant’s disability discharge at 10% was proper and fitting and there is insufficient evidence in the applicant’s medical and service records of a medical disability or condition that would support a change in narrative reason to “disability retirement”: The VA properly provided him support and benefits for service connected medical concerns post-service. 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 10 REFERENCES: 1. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and 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 or not 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 either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 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 11 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. 3. Army Regulation 635-40 establishes the Army 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. 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. Paragraph 3-2 states 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 military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 4. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. //NOTHING FOLLOWS//