ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 March 2019 DOCKET NUMBER: AR20160015639 APPLICANT REQUESTS: That he be permanently retired from the Army due to physical disability effective 2 November 2013. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s 30 August 2016 Memorandum * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 12 April 2001 to 2 November 2013 * Regular Army separation orders * DD Form 2807-1 (Report of Medical History) * DD Form 2697 (Report of Medical Assessment) * DD Form 2808 (Report of Medical Examination) * eight Standard Forms (SF) 600 (Chronological Record of Medical Care) * Department of Veterans Affairs (VA) Rating Decision letter FACTS: 1. The applicant states that despite several medical unfitting conditions, he did not receive a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB). 2. Counsel states: a. The applicant appeals to this Board because he suffered an error and an injustice when he was not administratively processed for a MEB and PEB under the provisions of Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3, AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), and AR 40-400 (Patient Administration), and medically retired for military disability in accordance with Title 10, U.S. Code, section 1201 Regulars and members on active duty for more than 30 days: retirement), et al. The applicant served honorably on active duty with the U.S. Army for over 12 and a half years. b. The applicant was separated with non-disability severance pay, under the provisions of Separation Pay Program, Department of Defense Instruction (DODI) 1332.29 in accordance with Title 10, U.S. Code, section 1174, as indicated on his separation orders. However, no steps were taken to have him medically retired through a MEB or PEB despite the fact that he was unfit for duty as a result of his medical conditions. Had proper procedure been followed, he would have been medically retired. The failure to medically retire him resulted in an error or injustice. He respectfully requests this Board find that an error or injustice has occurred and correct his records to reflect he was found unfit for as result of the following conditions: post-traumatic stress disorder (PTSD), ulnar nerve, feet disabilities. c. The applicant's medical conditions individually and in combination prevented him from effectively performing his military duties, as a result, he should have been evaluated by a MEB and been medically retired under AR 40-501. The failure to refer him to a MEB resulted in an injustice which should be corrected. His PTSD, flat feet, and hand disabilities were all recognized on his DD Forms 2807-1, 2697, and 2808. Instead of referring this Soldier with 12 years of service, who endured multiple deployments to combat zones, to the MEB and PEB he was referred to the VA, thus denying him and his dependents the military disability retirement that they deserved. Had all of the above medical conditions been properly considered prior to his discharge, he would have been medically retired. 3. The applicant enlisted in the Regular Army on 12 April 2001. His Enlisted Record Brief shows he served in Afghanistan from 15 September 2004 to 15 April 2005 and in Iraq from 20 October 2006 to 14 January 2008 and from 20 August 2009 to 16 July 2010. 4. The applicant's Noncommissioned Office Evaluation Report (NCOER) covering the period 1 October 2012 through 30 September 2013 shows he failed to meet height and weight standards during the rating period. The NCOER also shows he passed the Army Physical Fitness Test on 14 December 2012. 5. A DA Form 5691-R (Request for Reserve Component Assignments Orders), dated 16 August 2013, shows that the applicant, upon completion of his active service, accepted an assignment to the 324th Signal Battalion, Fort Gordon, GA (U.S. Army Reserve (USAR) Troop Program Unit). The form also shows he acknowledged he understood that he was required to report to his USAR unit within 30 days of his released from active duty and attend the next scheduled assembly/drill with his assigned unit. 6. Orders issued on 20 August 2013 directed the applicant's separation from active duty effective 2 November 2013. The additional instructions section of these orders contain the entry "Separation Pay Program DODI 1332.29" and that he was entitled to full separation pay in accordance with Title 10, U.S. Code, section 1174 (Separation pay upon involuntary discharge or release from active duty). 7. The applicant's DD Form 214 shows he was released from active duty on 2 November 2013, by reason of completion of required active service, and transferred to the 324th Signal Battalion, Fort Gordon, GA. 8. There is no evidence in the applicant's available records indicating he was unable to perform his military duties due to a physical disability. 9. Orders issued on 24 September 2015 directed the applicant's discharged from the USAR, effective 1 October 2015, due to unsatisfactory participation. 10. The applicant provided DD Forms 2807-1, 2697, 2808, and SF 600 showing he was treated while on active duty for a number of medical conditions that include PTSD, and hand and feet conditions. He also provided a VA Rating Decision letter showing he was granted service-connected disability compensation for a number of medical conditions with a combined rating of 100 percent. 11. On 4 October 2018, the Army Review Boards Agency senior medical advisor provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. There is no available evidence supporting a change to his narrative reason for separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. The applicant and counsel were provided a copy of the advisory opinion on 10 October 2018 and given an opportunity to submit comments. The applicant's counsel responded and stated the following: a. At the time of his discharge from active duty in November 2013, the applicant was suffering from PTSD, depression, and other medically unfitting conditions that are clearly documented in his military medical records. He was medicated with Wellbutrin for his major depressive disorder. Xanax and Klonopin were prescribed to calm his nerves. During 2013, he was seen on an outpatient basis by a civilian off post psychiatrist. b. His struggles with weight control did not help. Although not excuses, suffering from painful shin splints, flat feet, being unfavored with his genetic makeup of having a heavy build; all contributed over time to his inability to maintain satisfactory weight. c. The applicant's poor mental attitude and actions in the last years of his active duty service are consistent with symptoms of other soldiers who suffer from PTSD and depression. d. His three deployments to Iraq and Afghanistan contributed to his mental and physical breakdown; by 2013 he was no longer deployable. e. With 12 and a half years of active service to the Army, the applicant, in addition to the matters previously raised in his Army Board for Corrections of Military Records application, should be given the benefit of a doubt and medically retired from the Army effective 3 November 2013. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s counsel contentions, the applicant’s medical concerns, and the medical advisory opinion were carefully considered. Based upon the preponderance of evidence, the Board agreed the applicant did not have boardable medical conditions during his period of service, and do not recommend a medical evaluation for disability retirement consideration. 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 REFERENCES: 1. AR 40-501 provides that for an individual to be found unfit by reason of physical disability, the individual must be unable to perform the duties of his or her office, grade, rank, or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 2. AR 635-40 establishes the Army physical 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. Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. 3. AR 601-280 (Army Retention Program) prescribes the criteria for the Army Retention Program. For those Soldiers serving in the active Army, it outlines procedures for immediate reenlistment or extension of enlistment. For Soldiers separating from the Active Army, it prescribes eligibility criteria and options for enlistment or transfer into the Reserve Component (USAR and Army National Guard). Chapter 7 (Enlistment/Transfer Processing of Soldiers from the Regular Army to the Reserve Component) provides in paragraph 7-4 that except for special programs as announced, waivers are not authorized for Reserve Component enlistment/transfer. Soldiers must meet all eligibility criteria (including meeting medical fitness standards) established by this regulation, referenced regulations, and U.S. Army Human Resources Command. Eligibility must be established and verified through records screening by the servicing Career Counselor prior to processing. 4. Title 38, U.S. Code, 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. 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// ABCMR Record of Proceedings (cont) AR20160015639 4 1