ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 29 March 2019 DOCKET NUMBER: AR20160016520 APPLICANT REQUESTS: discharge due to physical disability in lieu of honorable discharge due to non-retention on active duty. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 14 pages of Standard Forms 600 (Chronological Record of Medical Care) * 64 pages of Department of Veterans Affairs (VA) medical records FACTS: 1. The applicant states: a. Due to a behavioral health diagnosis of post-traumatic stress disorder (PTSD), while on active duty, he feels he should have been removed from consideration by the Qualitative Management Program (QMP) and alternately considered by a medical evaluation board (MEB). b. He provided behavioral health documentation from his active duty service at Fort Carson, CO, as well as behavioral health documentation from the Lakewood, WA, VA medical facility. 2. After a prior period of 2 years, 2 months, and 19 days in the U.S. Army National Guard, the applicant enlisted in the Regular Army on 14 May 2001. 3. He served in Iraq from 7 March 2005 through 6 September 2005 and from 11 August 2007 through 29 October 2008. He served in Afghanistan from 23 November 2012 through 24 July 2013. 4. A DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), covering the period 11 March 2012 through 17 February 2013, shows: * he received a rating of “Needs Improvement” from his Rater for Values/NCO Responsibilities * his Rater’s comments show he displayed a lack of knowledge on weapon systems resulting in failure to register 120 millimeter mortars * he failed to proactively seek self-improvement by not taking ownership of failure to register 120 millimeter mortars * he received a rating of “4/Fair” from his Senior Rater for his overall performance 5. On 12 July 2013, he appealed the contested NCOER, requesting its removal from his official military personnel file (OMPF) based on substantive inaccuracy. On 26 September 2013, the Enlisted Special Review Board denied his request, determining the overall merits of the case did not warrant the requested relief. The NCOER is filed in the restricted folder of his OMPF. 6. A U.S. Army Human Resources Command memorandum, dated 5 February 2014, states the applicant was considered for removal by a Headquarters, Department of the Army Standby Advisory Board which convened on 3 December 2013. The board members recommended and the Director of Military Personnel Management approved that his name be retained on the recommended list announced in memorandum AHRC- PDV_PE, dated 4 April 2013, Subject: Fiscal Year 13 Active Component Sergeant First Class Promotion Board Announcement. Records indicate he was promoted to the rank/grade of Sergeant First Class/E-7 effective 1 July 2013. 7. He received two subsequent acceptable NCOERs then received a “Relief for cause” NCOER covering the period 19 March 2014 through 10 December 2014. This NCOER shows: * he received a “no” from his Rater in Part IV (Army Values/Attributes/Skills/Actions) for Duty: Fulfills their obligations * he failed to fulfill his duties and obligations as a senior NCO * he received a rating of “Needs Improvement” from his Rater in Physical Fitness and Military Bearing due to failing the 2 mile run on the Army Physical Fitness Test * he received a rating of “Needs Improvement” from his Rater in Responsibility and Accountability for losing accountability of a Lightweight Handheld Mortar Ballistic Computer during a field exercise * his rater deemed his overall potential for promotion and/or service n positions of greater responsibility as “Marginal” * his Senior Rater bullet comments state do not promote * his Senior Rater rated his overall performance and overall potential for promotion and/or service in positions of greater responsibility as “4/Fair” 8. The applicant provided a Standard Form 600, dated 5 June 2015, which shows was first evaluated on the date of the form with concerns related to deployment trauma and adjustment difficulties as he prepared to transition out of the Army. At the time of the evaluation, he had an upcoming QMP date of 1 November 2015 and it was indicated he was not in the MEB process. 9. A Standard Form 600, dated 17 June 2015, shows he started Cognitive Processing Therapy for trauma and anxiety symptoms at the Mountain Post Behavioral Health Clinic. He completed two sessions of the therapy and was started on and anti-anxiety medication. It also states no weapons or duty restrictions were indicated at that time. He was considered psychiatrically fit for full duty with no indication of a MEB or physical profile. He was deployable and retainable in accordance with Army Regulation 40-501 (Standards of Medical Fitness). 10. His records are void of any documentation pertaining to his consideration and ultimate denial of continued service in the Army by the QMP. 11. His available service records do not show: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 12. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged from the Army on 1 November 2015, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, due to non-retention on active duty after 14 years, 5 months, and 18 days of net active service this period. 13. A review of his VA medical records indicates he has an 80 percent service- connected disability rating for the diagnosis of PTSD. His secondary diagnoses include depression and generalized anxiety disorder. His PTSD symptoms are related to traumatic deployment experiences and his treatment has entailed individual therapy and medication management. 14. On 22 August 2018, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA medical advisor concluded there is a lack of evidence that he met full criteria for PTSD or another boardable behavioral health condition during his period of service. Although he endorsed trauma related symptoms stemming from deployment experiences, there is no indication he met the criteria for PTSD during his service. He was considered psychiatrically fit for duty and that an MEB was not warranted. A copy of the complete medical advisory was provided to the Board for their review and consideration. 15. The applicant was provided a copy of the advisory opinion on 19 September 2018 and given an opportunity to submit comments, but he did not respond. 16. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 4 provides for discharge or release from active duty upon termination of enlistment and other periods of active duty or active duty for training. Soldiers who are precluded from retention for any reason will not be retained beyond the last day of the month in with their expiration term of service falls, or if on indefinite status, they will not be retained beyond the last day of the month in which their retention control point falls. 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 an entry-level status and service is uncharacterized. b. Paragraph 16-4, pertains to non-retention on active duty. Soldiers denied or ineligible for continued active duty service may be separated upon request and their service will be characterized as honorable. 17. 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. 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). b. 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. 18. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The applicant’s contentions and the medically advisory opinion were carefully considered. Based upon the preponderance of evidence, and notwithstanding the medical advisory, the Board agreed the applicant should have his medical condition evaluated to determine if he would have been medically retired. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X : :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his type of discharge without evaluation under the IDES. 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. 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 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. 2. 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. 3. 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. 4. 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. 5. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 4 provides for discharge or release from active duty upon termination of enlistment and other periods of active duty or active duty for training. Soldiers who are precluded from retention for any reason will not be retained beyond the last day of the month in with their expiration term of service falls, or if on indefinite status, they will not be retained beyond the last day of the month in which their retention control point falls. 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 an entry-level status and service is uncharacterized. b. Paragraph 16-4, pertains to non-retention on active duty. Soldiers denied or ineligible for continued active duty service may be separated upon request and their service will be characterized as honorable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016520 8 1