ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20160014675 APPLICANT REQUESTS: consideration for a medical retirement from active duty at the time of his discharge based on his non-deployable status due to numerous medical conditions. 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) * Veteran Affairs (VA) letter summary of benefits * VA statement of service connected disabilities 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 90% disability rating from the Veteran Affairs (VA) and believes that his medical conditions, if viewed objectively, would have qualified him for Medical Evaluation Board (MEB) processing while on active duty. He believes that his chain command and the brigade physician assistant interfered with his medical processing that prevented due consideration for MEB proceedings. He was found non-deployable due to his shoulder injury and transferred to a consolidated rear-detachment in order to receive medical treatment. He routinely sought medical care for his shoulder and numerous other injuries. His commander informed him that he believed he was faking his medical issues in order to not deploy. Pre-deployment screening identified and substantiated numerous medical issues that he sought medical car for but was denied medical treatment by the rear detachment troop medical clinic (TMC). 3. The applicant provides copies of his active duty medical records from 2009, 2010 and 2012, DD Form 214 (Certificate of Release or Discharge from Active Duty). He also provides a copy of his VA letter summarizing his VA rating of 90% and another VA letter verifying his service connected disabilities which were listed: sleep apnea 50%, PTSD 50%, migraine 30%, Left shoulder AC joint 20%, low back disability 20%, right knee patellar tendonitis 20%, scar formation 10% with a combined rating of 90%. f 4. A review of the applicant’s service record show the following: a. He enlisted in the U.S Army Reserve (USAR) on 11 April 2007. b. He enlisted in the Regular Army (RA) on 29 October 2009. c. The applicant was issued profiles for the following injuries: * Temp profile for low back pain from 26 May 2010 to 9 June 2010 * Temp profile for left shoulder pain, back pain, mental health from 27 October 2010 to 15 November 2010 * Temp profile for shoulder pain, back pain from 22 November 2010 to 22 January 2011 * Temp profile for shoulder strain from 12 January 2011 to 26 February 2011 * Temp profile for shoulder strain from 9 March 2011 to 8 May 2011 * Temp profile for shoulder surgery from 2 June 2011 to 31 August 2011 * Temp profile for upper extremity from 3 June 2011 to 1 September 2011 * Temp profile for extremity injury/Surgery from 18 October 2011to 16 January 2012 * Temp profile for sleep apnea from 15 November 2011 to 30 December 2011 * Permanent profile for sleep apnea dated 23 April 2012 * Temp profile for left shoulder pain from 26 April 2012 to 25 July 2012 * Temp profile Left shoulder pain from 23 July 2012 to 22 August 2012 * Temp profile Left shoulder pain, right knee from 22 August 2012 to 27 August 2012 * Temp Left shoulder pain, right knee from 29 August 2012 to 27 November 2012 d. He was released from active duty on 28 October 2012. His DD Form 214 shows that he completed 5 years, 2 months, and 6 days of active duty service with an honorable character of service. Block 28 (Narrative of Service) shows completion of required active service. e Orders D-04-507452, dated 14 April 2015, discharge the applicant from the USAR with an effective date of 14 April 2015 with an honorable character of service. f. A Medical Advisory Opinion, dated 6 June 2019, states that the available records do not support post-traumatic syndrome (PTSD) or another boardable behavioral health condition and that this condition did not fail medical retention standards in accordance with (IAW) AR 40-501 (Standards of Medical Fitness). It also states that the applicant met medical retention standards for his left shoulder pain IAW AR 40-501, chapter 3-12 (Upper Extremities) and 3-14 (Miscellaneous conditions of extremities), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. It further states that the applicant met medical retention standards for his knee pain IAW AR 40-501, chapter 3-13 (Lower Extremities), and following the provisions set forth in AR 635-40 were applicable to the applicant’s era of service. The applicant’s medical conditions were duly considered during his separation processing. A review of the available documentation found insufficient evidence of a medical disability condition that would support a change to the character(s), reason(s), rated conditions(s), disability determination(s), disability rating(s), and or combat relatedness for the discharge in this case. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. Congress grants that role and authority to the VA, operating under a different set of laws. If official service treatment records (STR) become available in the near future, from the VA or elsewhere, they will review and amend this medical advisory if indicated. g. On 12 June 2019, the applicant received an Ex-parte letter and a copy the Medical Advisory Opinion. No response from the applicant was recorded. 5. AR 635-200 (Active Duty Enlisted Administrative Separations) AR 635-200 states that a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. The period of military service required for all Soldiers of the Army will be in accordance with applicable laws. 6. AR 40-501 (Medical Service Standards of Medical Fitness) states that individuals evaluated under medical fitness standards contained in this regulation will be reported as indicated: a. Medically acceptable for all individuals who meet the medical fitness standards established for the particular purpose for which examined. b. Medically unacceptable by reason of medical unfitness all individuals who possess any one or more of the medical conditions or physical defects listed in this regulation as a cause for rejection for the specific purpose for which examined. 7. AR 635-40, AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) 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 8. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory’s finding that the available documentation found insufficient evidence of a medical disability condition that would support a change to the narrative reason for separation and the applicant failed to submit a rebuttal to those findings, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s narrative reason for separation. 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 4 of this regulation states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. The period of military service required for all Soldiers of the Army will be in accordance with applicable laws. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System (DES) 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 for medical evaluation boards, which are 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 prescribed in AR 40-501, which governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 4. AR 40-501 (Standards of Medical Fitness), states that individuals evaluated under the medical fitness standards contained in this regulation will be reported as medically acceptable for those who meet the medical fitness standard or are medically unacceptable by the reason of medical unfitness for those who possess any one or more of the medical conditions or physical defects listed in this regulation. ABCMR Record of Proceedings (cont) AR20160014675 0 4 1