ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20160016911 APPLICANT REQUESTS: his honorable discharge with severance pay be changed to a disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * On-line application * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings * Impartial Medical Review request and decision * Integrated Disability Evaluation System (IDES) MEB Narrative Summary * 3 DA Forms 2166-8 (Non-commissioned Officer Evaluation Report (NCOER)) * Department of Veterans Affairs (VA) medical records * Defense Finance and Accounting Service Military Leave and Earnings Statement 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 in September 2015, he was recommended for an MEB due to ankle instability and post-surgery. At that time, he was seeing a psychiatrist one to two times a week for post-traumatic stress disorder (PTSD) and anxiety rated to PTSD. He was scheduled to attend Behavioral Intensive Outpatient Treatment, however due to the MEB process his time table was pushed forward and he was unable to attend the recommended treatment. He appealed the decision to not classify PTSD as an unfitting condition. The results of classifying PTSD as an unfitting condition was that he had not attended treatment and therefore his PTSD was unable to be classified as unfitting. His psychiatrist recommended PTSD as unfitting. He was told to appeal once his discharge was final. He has seen VA for treatment of his PTSD. PTSD should have been a disqualifying factor for his discharge, therefore resulting in medical retirement not medical severance. 3. On 12 November 2015, a MEB found the applicant failed retention standards for post-operative painful residual left ankle specified by VA as s/p Brostrom reconstruction and subsequent arthroscopy with debridement and modified Brostrom repair. It was determined he met retention standards for the following: * PTSD * Scars, ankle * Hemangiomas, arms, torso * Hallux valgus, left (VA diagnosis, no medical basis) * Cervical strain * Arthritis, cervical spine (VA diagnosis, no medical basis) * Thoracolumbar strain 4. On 30 November 2015, after being informed of the approved findings and recommendation of the board, the applicant agreed with the board’s findings and recommendation. 5. On 18 November 2015, the applicant requested an impartial provider review (IPR) of his MEB. Specifically, he requested a review of all of the MEB’s findings for adequacy of review, including, but not limited to the MEB’s findings regarding PTSD. 6. On 19 November 2015, the IPR made the following recommendations: a. Concur with keeping the failing diagnosis of residual post-operative pain to the left ankle s/p Brostrom reconstruction and arthroscopy with debridement and repair as determined by the MEB. b. Concur with the MEB that all the conditions listed under "Diagnoses that Meet Army Retention Standards" on the NARSUM are appropriately reviewed and the correct conclusions stand. There is no documented medical evidence to conclude otherwise. 7. On 18 December 2015, an informal PEB found the applicant unfit and recommended a rating of 10 percent and separation with severance pay due to post- operative painful residual left ankle. He was found fit for the following conditions: * PTSD * Scars, ankle * Hemangiomas, arms, torso * Hallux valgus, left (VA diagnosis, no medical basis) * Cervical strain * Arthritis, cervical spine (VA diagnosis, no medical basis) * Thoracolumbar strain 8. On 23 December 2015, after being advised of the findings and recommendations of the PEB and receiving a full explanation of the results of the findings and recommendations and legal rights, the applicant concurred and waived a formal hearing. He did not request reconsideration of his VA ratings. 9. The applicant’s NCOERs from 2011 through 2016, shows his overall potential for promotion and/or service in positions of greater responsibility was rated as “Fully Capable” or “Among the Best.” 10. On 27 March 2016, the applicant was honorably discharged due to disability with severance pay. 11. On 19 March 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA senior medical advisor concluded all data indicates the applicant met retention standards for his claim of PTSD at the time of his MEB for his ankle injury. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. On 21 March 2019, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments or rebuttal. He did not respond. 13. Army Regulation 635-40 (Standards of Medical Fitness) 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. 14. 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 mere presence of a medical impairment does not in and of itself justify a finding of unfitness. 15. 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. 16. Defense Directive-Type Memorandum (DTM 11-015, 19 December 2011, provides for the IDES. The IDES is the joint Department of Defense (DOD) - VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a service-connected disability. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the medical advisory opinion. The Board discussed the unfitting condition that led to his medical separation, the applicant’s statement related to his disability processing and PTSD and the conclusions of the medical advisory opinion. The Board determined by preponderance of evidence that he had no unfitting conditions other than the one identified in the records and that his medical separation with severance pay was not an error or injustice. 2. After reviewing the application and all supporting documents, the Board found the relief was not warranted. 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. 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, 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. 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. 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. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she 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. Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating. A physical profile rating of "3" in any of six rated categories (P-physical stamina, U-upper extremities, L-lower extremities, H-hearing, E- eyes, S-psychiatric) is a basis for referring a Soldier to the PDES. 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. 6. DTM 11-015, 19 December 2011, provides for the Integrated Disability Evaluation System (IDES). The IDES is the joint Department of Defense (DOD) - VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a service-connected disability. 7. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. ABCMR Record of Proceedings (cont) AR20160016911 2 1