ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20160017250 APPLICANT REQUESTS: in effect, physical disability retirement in lieu of physical disability discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * partial DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 28 June 2013 * Headquarters III Corps and Fort Hood Orders 203-0152, dated 22 July 2013 * DD Form 214 (Certificate of Release or Discharge from Active Duty), covering the period 3 December 2009 through 14 October 2013 * Department of Veterans Affairs (VA) letter, dated 5 August 2014 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: a. He has been trying for the past 3 years to find a way to fix his discharge, but he has been given the run-around. I thought since he received a “medical out” he was considered medically retired, but he was wrong and that is what brought about his application. b. When he went through the Medical Evaluation Board (MEB) process, he was given a disability rating of 0 percent, but he believes that is wrong. He had more than enough records to show that it was an issue that was caused by the Army. When he asked why he was given a 0 percent rating, he was told there was no rating for the injury he suffered, but the VA rated him differently. He wants to know how it is he received an injury while in combat and suffered mental and physical issues as a result, yet the Army would rate him as zero percent disabled. 3. After period of service in the U.S. Army National Guard (ARNG), amounting to 2 years, 6 months, and 2 days, the applicant was honorably released from the ARNG on 2 December 2009, for the purpose of enlistment in the Regular Army. He enlisted in the Regular Army on 3 December 2009. 4. He served in Iraq from 1 March 2010 through 14 June 2010 and in Afghanistan from 15 June 2010 through 18 November 2010. 5. The applicant’s MEB documentation is not in his available records for review. 6. The applicant provided a partial DA Form 199, including only pages 1-2 of 4 pages, which show: a. An informal PEB convened on 28 June 2013, at Fort Sam Houston, TX, and found the applicant was physically unfit, recommended a rating of 0 percent, and recommended his disposition be separation with severance pay. b. Among the reviewed documents by the PEB were the MEB Narrative Summary, DA Form 7652 (Disability Evaluation System (DES) Commander’s Performance and Functional Statement), DA Form 3349 (Physical Profile), and the VA Compensation and Pension Exam, and the VA Rating Decision. These documents are not in the applicant’s available records for review. c. The rated condition was the first MEB diagnosis, recurrent and status post Fistula-in-Ano (abnormal infected cavity that forms between the anal canal to the skin near the anus), VA Schedule of Rating Disabilities (VASRD) diagnostic code 7335 (fistula of the anus). The condition began in August 2010, while the applicant was deployed to Afghanistan and he developed an infection in his anus. A cyst developed that had to be drained regularly. Despite Fistula-in-Ano surgeries upon his redeployment in late 2010, medications, and multiple treatment modalities, his impairment persisted. d. This case was adjudicated as part of the Integrated Disability Evaluation System (IDES). The specific VASRD code to describe the applicant’s condition and the disability percentage was determined by the VA and is documented in the VA memorandum, dated 12 June 2013. The disposition recommendation was determined by the PEB based on the VA disability rating proposed and applicable statues and regulations for the Physical Disability Evaluation System. e. This condition was unfitting because the applicant was unable to lift more than 15 pounds, bend, climb, execute operations in a field or deployed/combat environment, perform any of the Army Physical Fitness events, evade combat fire, or deploy to an austere environment. This condition prevented the performance of one or more Common Soldier Tasks and prevented him from functioning in his then current assignment. f. The PEB also considered the MEB diagnoses 2-6 (lumbago, bilateral knee arthralgia, left Achilles enthesopathy (inflammation of the connective tissue connecting the bone to the ligament), metatarsalgia (painful inflammation in the ball of the foot), and chronic post-traumatic stress disorder (PTSD). These conditions, individually and in combination were not associated with any physical profile limitations and did not impact the applicant’s ability to perform any one of the ten functional activities. The MEB indicated these conditions met medical retention standards; therefore, these conditions were not unfitting. g. It is unknown if the applicant concurred with the findings, as the last pages of the DA Form 199 are not available for review. 7. His DD Form 214 shows he was honorably discharged on 14 October 2013, under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability with severance pay, combat related (enhanced), after 3 years, 10 months, and 12 days of active duty this period. 8. A VA letter, dated 5 August 2014, shows the applicant was given a combined service-connected disability rating of 70 percent effective 1 July 2014. The letter does not list the specific conditions for which he was granted service-connected disability. 9. On 21 March 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA senior medical advisor concluded there is insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and thus no additional disability rating(s) are recommended. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 10. The applicant was provided a copy of the advisory opinion on 27 March 2019, and given an opportunity to submit comments, but he did not respond. 11. 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. 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. 12. 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. 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. 13. Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40. Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD). The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 14. 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. 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. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board found insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and the medical advisory opinion and found insufficient evidence of error, injustice, or inequity. The Board agreed with the medical advisory that there is insufficient evidence to change the PEB fitness determination for any of the contended conditions or increase the applicant’s disability rating(s). The Board further agreed that the Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation; the VA properly provided him support and benefits for service connected medical concerns post-service. 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, 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. 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, 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. 3. 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. 4. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40. Once a determination of physical unfitness is made, the PEB rates all disabilities using the VA Schedule for Rating Disabilities (VASRD). The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 5. 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. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160017250 8 1