ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20160017244 APPLICANT REQUESTS: in effect, reconsideration for implementation of the directive by the Army Board for Corrections of Military Records (ABCMR), dated 20 January 2015 to allow him to complete the medical evaluation board (MEB) process. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s Request for Information (RFI) to the Office of the Surgeon General Letter, dated 22 April 2016 * Blanchfield Army Community Hospital (BACH), Fort Campbell, KY Memorandum for Record (MFR), dated 16 June 2015 * Chief, Medical Boards, Fort Campbell, KY email to the applicant, dated 25 May 2016 * ABCMR Decision, Docket Number AR20130019272, dated 20 January 2015 * Applicant Letter of Appeal, dated 16 October 2016 * Applicant’s addendum, dated 22 January 2019 plus additional documents (46 pages) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130019272 on 20 January 2015 and Docket Number AR20120006252, dated 1 November 2012. 2. The applicant states he is appealing the response provided to the ABCMR from the Blanchfield Army Community Hospital (BACH) regarding an MEB because he believes BACH completely failed to address the instructions provided to them from the ABCMR board determination (addressed in Docket Number AR20130019272, dated 20 January 2015). The applicant also states the BACH failed in the reporting process of informing him, in excess of 11 months, of their decision as to whether his medical issues would be boarded. 3. The following correspondence was exchanged between ABCMR, the BACH, Office of the Surgeon General, and the applicant regarding his case: a. ABCMR Docket Number AR20130019272, Record of Proceedings (ROP), dated 20 January 2015, was a reconsideration for ABCMR Docket Number AR 20120006252, dated 1 November 2012. The Board granted full relief to the applicant’s request to complete the MEB process. Due to the applicant’s Title 32 AGR (Active Guard Reserve) status (under the control of the Governor and the Adjutant General, Tennessee Army National Guard (TNARNG)) when his MEB packet was submitted, his packet was routed through his State Medical Review Board, TNARNG first. Per the AR20130019272 ROP, the applicant’s MEB packet was reported lost and not routed on for an active duty MEB while he was actively serving in a Title 32 AGR status. b. BACH memorandum for record (MFR), dated 16 June 2015, from the Acting Appellate Authority, MEB Physician, BACH, Fort Campbell, KY was provided by the applicant (see attached (labeled: “Attachment 3”)). The MFR details: (1) BACH’s review of the ABCMR Record of Proceedings, dated 20 January 2015, all attachments, and available past and current medical records related to mental health evaluations completed on behalf of the applicant. (2) Medical records beyond the applicant’s separation date (14 November 2008, terminating him from the AGR program) were reviewed to get an overall impression of the history and proceedings. Only information which was available at the time of separation was considered in the opinion outlined in the MFR. (3) Based on the information available at the time the applicant was discharged from the AGR program for administrative purposes, he did not qualify for processing through the MEB. He was not diagnosed at that time with a condition that was cause for referral to the MEB. c. An RFI, dated 22 April 2016, was sent to the Office of the Surgeon General, Falls Church, VA, requesting the status of the scheduling of his MEB and subsequent medical retirement as directed by ABCMR. d. Email from Ms. X of MEDCOM (Medical Command), BACH to the applicant, dated 25 May 2016, providing attachments containing the results of the MEB/ABCMR review. 4. The applicant provided a letter of appeal with the four attachments (listed above) as new information to the President of the Army Discharge Review Board (ADRB)/ABCMR, disputing the findings of an MFR created by the BACH on 16 June 2015 addressing the consideration of his medical condition related to Post Traumatic Stress Disorder (PTSD) should have been reviewed by a MEB. The applicant provided his letter of appeal that he has not been provided the medical support and procedures as directed by ABCMR AR20130019272. 5. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 8 September 1987. He was released from active duty on 8 September 1989 and transferred into the U.S. Army Reserve (USAR) Control Group (Annual Training) until 19 November 1989. b. He enlisted in the TNARNG on 19 October 1989 as a traditional drilling Soldier. He served in a drilling status with the military occupational specialty of 19K (Armor Crewman) until 1 March 2001 and attained the rank of sergeant first class (SFC)/E-7. c. Orders 061-180, dated 2 March 2001, from Headquarters, TNARNG, ordered the applicant to a full time National Guard duty, AGR status effective 2 March 2001. He served as a Training/Administration noncommissioned officer within the National Guard armory in Erwin, TN, but was later assigned to Troop A, 1/278th Armored Cavalry Regiment, Cleveland, TN with duties as a M-1 Armor Crewman and Tank Commander/Master Gunner. d. Orders 140-228, dated 19 May 2004, from Joint Force Headquarters (JFHQ), TNARNG ordered him to active military service under Title 10 U.S. Code (USC) section 12302(a), to support Contingency Operation Iraqi Freedom III on 7 June 2004. e. He was released from active duty not by reason of physical disability on 8 November 2005 at the completion of required active service. On the following day, he was transferred back to the TNARNG. His DD Form 214 shows he was deployed for 1 year, 5 months, and 2 days. f. His DD Form 2807-1 (Report of Medical History) and DD Form 2808 (Report of Medical Examination), both completed and reviewed by the applicant and medical professionals at Fort Campbell, KY on 8 January 2006, did not reveal any new or exacerbated physical or mental abnormalities three months after the applicant returned from deployment. g. He received an Administrative General Officer Letter of Reprimand (GOLOR), dated 15 October 2007 for severe negligence and dereliction of duty to perform tasks as an AGR Soldier in the TNARNG. Further details regarding the GOLOR are referenced in the attached previous ABCMR (Docket AR20130019272). h. A memorandum addressed to the State Medical Board, dated 28 January 2008, indicated the applicant’s unit commander recommended that he not be retained in the unit. The unit commander stated the applicant had informed him that since returning from deployment in November 2005, he had problems managing his workload, staying focused, and being able to multitask. The commander recommended the applicant be transferred to another position. i. The applicant was notified by a memorandum (dated 24 September 2008) that he was terminated from the AGR progam based upon the involuntary separation packet submitted through his chain of command by his unit. j. According to the applicant’s DD Form 214, dated 14 November 2008, he was released from active duty under the provisions of Army Regulation (AR) 635-200, (Active Duty Enlisted Administrative Separations), paragraph 14-12a for misconduct - minor infractions (referenced in the attached GOLOR, dated 15 October 2007). He received a general under honorable conditions character of service. His DD Form 214 shows in: * Item 23 shows he completed 9 years, 11 months, and 2 days of total active service * Item 9 (Command to Which Transferred) shows the applicant was transferred back to the ARNG, State of Tennessee as a traditional drilling Soldier and continued military service k. Orders 123-836, dated 2 May 2012 published by JFHQ TNARNG, shows the applicant was discharged from the TNARNG and assigned/transferred to the Retired Reserve on 15 June 2012. His NGB Form 22 (Report of Separation and Record of Service) shows he was honorably discharge from the TNARNG, on 15 June 2012, in the rank of SFC. * Item 23 (Authority and Reason) shows he was separated in accordance with National Guard Regulation (NGR) 600-200, paragraph 6-36r, because he was not selected for retention by a Qualitative Retention Board and was assigned to the Retired Reserve * He completed 22 years, 7 months, and 27 days of net service this period and a total of 24 years, 9 months, and 8 days of total service for pay 6. The applicant has completed two prior requests to for the correction of his military records. They are as follows: a. In the initial ABCMR (Docket Number AR20120006252, dated 1 November 2012), the applicant requested, in effect that he be: * restored to active duty in the AGR Program retroactive to his involuntary separation date of 14 November 2008 * allowed to complete the MEB process * granted a medical retirement b. The Board determined the evidence presented did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of the case were insufficient as a basis for correction of the applicant’s records. c. Within ABCMR (Docket Number AR20130019272, dated 20 January 2015 (a reconsideration of ABCMR, Docket Number AR20120006252, dated 1 November 2012), the applicant requested a reconsideration of his earlier ABCMR to be allowed to complete the MEB process and to be issued a medical retirement. He withdrew his request to be restored to active duty in the AGR Program retroactive to his involuntary separation date of 14 November 2008. d. The Board determined the evidence presented was sufficient to warrant amendment of the previous ABCMR decision. As a result, the Board recommended that all Department of the Army records of the applicant be corrected by offering him the opportunity to undergo a physical evaluation to determine his fitness for retention in the Army. The approved Record of Proceedings was forwarded to the OTSG, Falls Church, VA. The specific actions recommended are as follows: (1) By directing the Office of The Surgeon General to contact the applicant and arrange a physical evaluation via appropriate medical facilities; and (2) If appropriate, by referral to an MEB and an informal Physical Evaluation Board (PEB). (3) The Office of the Surgeon General is directed to use appropriate invitational travel orders to accomplish the physical evaluation and, if necessary, the MEB and PEB. (4) In the event that a formal 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. (5) In the event it is determined that the applicant should be medically separated, his honorable discharge from the TNARNG should be voided. 7. Pages 7-10 of the attached ABCMR (Docket AR20130019272) detail the process, actions, and dates the applicant was considered for further medical evaluation from his State Medical Board, the MEB team at the BACH, and the Veterans Administration. However, there is no evidence the applicant was processed through the disability system. 8. An MFR, dated 26 May 2019, from the Chief of Medical Boards/Integrated Disability Evaluation System (IDES), Fort Campbell, KY provides the purpose of the memorandum is to: a. Inform the ABCMR that the applicant was called on 25 May 2016 to advise him of the finding from the BACH Medical Boards Department. During the phone call with the applicant, the chief advised him of the findings and forwarded the memorandum with decision regarding the disability process to his emails (va.gov and yahoo.com) b. In an effort to advise the applicant of the decision from the MTF, the applicant asked if the chief could advise him regarding the overall outcome. The chief read paragraph 5 of the MFR (initiated by the BACH, dated 16 June 2015) to the applicant which stated in conclusion and reiterating, based on information which would have been available at the time the applicant was discharged from the AGR for administrative purposes, he did not qualify for processing through the MEB. The applicant was not at that time diagnosed with a condition that was cause for a referral to the MEB. c. The chief advised the applicant that she was unsure if there was an appeal process, but recommended he contact the ABCMR Board in order to find out. The chief apologized for the MTF not reporting the findings to the applicant upon receipt of the findings as her staff thought he would be contacted by ABCMR and/or the Office of the Surgeon General (OTSG). 9. The applicant recently provided and addendum, dated 22 January 2019, plus additional correspondence with the intent to clarify the specific points of his current request. 10. Title 10 U.S. Code, chapter 61, provides for disability retirement or separation fir a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 11. Title 38 U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher rating does not establish an error or injustice on the part of the Army. 12. By regulation (AR 635-40- Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. The regulation provides that the military treatment facility (MTF) will provide a thorough and prompt evaluation when a Soldier’s condition becomes questionable in respect to physical ability to perform duty. Unit commanders will ensure that any physical defects impacting on a Soldier’s performance of duty are reflected in the Soldier’s evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating. It also states that the MTF commander having primary medical care responsibility will conduct an examination of the Soldier referred for evaluation. If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a MEB. The MEB will recommend referral to a PEB those Soldiers who do not meet retention standards. 13. By regulation (NGR 600-5), Adjutants General will be the final separation authority for Army National Guard AGR Soldiers. AGR Soldiers will be involuntary separated for cause from Full-Time National Guard Duty in accordance with the provisions of and procedures of outline within the regulation. Adjutants General will review all recommendations for separation and will make the final determination. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence, the Board found that the medical conditions were reviewed and found that the applicant did not qualify for an MEB; therefore, the earlier directive of the ABCMR was followed and it was determined that the conditions did not meet the need for a MEB review. For that reason, the Board concluded that there was no evidence or an error or injustice which would warrant granting any relief in this case. 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 U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 2. Title 38 U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher rating does not establish an error or injustice on the part of the Army. 3. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. The regulation provides that MTF will provide a thorough and prompt evaluation when a Soldier’s condition becomes questionable in respect to physical ability to perform duty. Unit commanders will ensure that any physical defects impacting on a Soldier’s performance of duty are reflected in the Soldier’s evaluation report and refer the Soldier to the servicing MTF for medical evaluation when the Soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating. It also states that the MTF commander having primary medical care responsibility will conduct an examination of the Soldier referred for evaluation. If it appears that the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to a MEB. The MEB will recommend referral to PEB those Soldiers who do not meet medical retention standards. 4. National Guard Regulation (NGR) 600-5, in effect at the time, provided Adjutants General will be the final separation authority for Army National Guard AGR Soldiers. AGR Soldiers will be involuntary separated for cause from Full-Time National Guard Duty in accordance with the provisions of and procedures of outline within the regulation. Adjutants General will review all recommendations for separation and will make the final determination. 5. 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; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. ABCMR Record of Proceedings (cont) AR20160017244 8 1