ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20160017359 APPLICANT REQUESTS: * change the reason for discharge from officer retirement temporary disability to officer retirement permanent disability * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Affidavit * NARSUM (Narrative Summary) * Appeal to Medical Evaluation Board (MEB) * Request for Impartial Review * Request for Impartial review 2 * Physical Profile * Exam Results * Email * DA Form 3937 (Medal Board Proceeding) * Exam Results 2 * Commanders Performance Statement * Result Code * Response to Appeal MEB FACTS: 1. The applicant states: a. During his deployment to Afghanistan in February 2006, he sustained injuries to his lumbar spine and shoulders leading to right shoulder surgery in November 2007, and subsequent intensive medical and physical therapy for both upper and lower extremities conditions with unsatisfactory recovery by March 2009 when he received deployment orders for Iraq. At that time his physical profile was changed from PULHEES: "3-2-3-1-1-1" to "1-2-1-1-1-1" without any re-evaluation to ensure his fitness for deployment. His conditions became worsened during the deployment and post a. deployment periods despite continued intensive medical therapy. Several MRI (magnetic resonance imaging) results between the fall of 2011 and 2015 showed severely worsened conditions which caused great difficulty with walking or even minimal weight bearing. b. In April 2015, he was referred to a medical evaluation board (MEB) with a permanent profile "3-3-3-1-1-1" by the primary care physician saying the deterioration of his shoulders, neck and lumbar conditions have progressively worsened. The MEB supervisor and staff assigned to his case intentionally downgraded the profile submitted for MEB, wrote a new profile "3-2-3-1-1-1" for military occupational specialty(MOS)/ medical review board (MMRB), prepared and submitted a biased and inaccurate narrative summary to the Army physical evaluation board (PEB) and indicated that his disability was mild. That was done against the recommendations of an impartial medical review, against the advice of the MEB counsel prior to the report being submitted to the PEB and without any interview, examination or proper review and understanding of the medical documentation. The PEB concluded that he was fit for duty on the basis that he had satisfactorily performed his duties as head of the Outpatient medical records at the WRNMMC (Walter Reed National Military Medical Center). The PEB further recommended that if the service member's condition had worsened it was the responsibility of his command/MTF (military treatment facility) to initiate a MEB and submit a new report. c. He was referred to the neurosurgeon for re-evaluation of his lower back, neck and shoulders and had an appointment scheduled for Tuesday, 29 March 2016. Prior to that appointment the MEB supervisor contacted the neurosurgeon and requested that no surgery should be schedule. Following that appointment, he was scheduled for neck surgery on 17 May 2016; however, that surgery was canceled based on the recommendation of the MEB supervisor. d. Following an appointment with his primary care physician on 31 March 2016, a new permanent profile was submitted by the primary care physician in support of the PEB's recommendation to initiate a new MEB. The MEB has 10 days by which to initiate processing of the case. The MEB supervisor went on vacation, processing of the case was not initiated, the supervisor returned from vacation on 18 April 2016, and again refused to prepare an appropriate narrative summary and submit to the PEB. Instead, on 19 April 2016, he wrote a one-page letter to the PEB in which he stated that the service member's conditions had not worsened and did not require a MEB. There was never any interview or examination of the service member at any time by the MEB physician regarding his disabilities. e. On 20 April 2016, the applicant notified both his medical chain of command and the troop commander Colonel (COL) X____ of the problem and was told by COL X____ that there would be no medical board and his only option was to begin out- processing toward his retirement by 30 April 2016. He was retired with pending medical and dental conditions and told to address his issues with the Veteran Administration (VA) during retirement. He was presented a DD Form 214 (Certificate of Release or Discharge from Active Duty) on Friday evening, 29 April 2016, which contained an error regarding his dental condition and has led to difficulty obtaining timely medical care from the VA. f. He began his career with the Army Medical Corps as a second lieutenant on 20 July 1991, with a BS degree from Tuskegee University, and MS and Ph.D. from Virginia Tech University. In 2003, he was to be assigned to Fort Benning, GA, following his civilian medical residency training. Following his notification of the OTSG (Office of The Surgeon General) personnel at, Falls Church, regarding discriminatory issues faced with the National Board of Medical Examiners (NBME), he was sent on an unaccompanied two-year PCS (permanent change of station) assignment to South Korea. He needed to be in the US then in order to address matters to obtain his State Board Medical Certification and unrestricted Medical license by means of examination administered by the NBME. Discrimination by the NBME began during his medical school years and continued during and after his residency training. He was unable to obtain his State Board License while stationed in South Korea from 4 August 2003 to September 2005. He was transferred from the Medical Corps to the Medical Service Corps in 2005 just prior to his PCS relocation to Fort Drum, NY. g. On 28 February 2006, while deployed in Afghanistan, he was notified by the National Personnel Record Center (NPRC), St. Louis, MO, that his credential records, previously kept at the OTSG, Falls Church, VA, from 1991 to 2003, were transferred the NPRC, instead of being sent to the U.S. Army Human resources Command (HRC), Alexandria, VA, to be placed in his official military personnel file (OMPF). He was credited with 9 years, 4 months, and 14 days of Active Duty time between 1991 and June 2003, with the remaining time credited toward the HPSP while in medical school for which active duty credit is not given to anyone in similar circumstances. h. After 24 years and 10 months of dedicated military service he was credited with 12 years, 8 months, and 27 days of active duty and was denied the 9 years, 4 months and 14 days credited to him between 1991 and 2003, owing to the fact that his credential records have been lost by HRC. As late as 24 June 2015, his HRC portal data could only be located under the Reserve/Retiree section with gross inaccuracies regarding his civilian education. He was presented as having only a BS degree. His education as of June 1991, included MS, Ph.D., and a MD completed and a MBA degree in progress and had provided transcripts for all degrees to the OTSG, Falls Church, where his credential files were kept from July 1991 through February 2003. i. His retirement type and allotment code must be corrected to disability, instead of non-disability/1. His retirement benefits must reflect his worsening disability effective 1 May 2016. His years of service credited toward retirement: 12 years, 8 months, 27 days must be corrected to include the 9 years, 4 months and 14 days earned prior to August 2003. Therefore, his years credited toward retirement must read 22 years, 1 month, and 11 days and his retirement pay must reflect this correction retroactive to the effective date of his placement on the retired list, 1 May 2016. The 12 years, 8 months and 27 days only entitles him to 30% of his base pay ($2,000.00 monthly), inadequate for retirement sustainment after 24 years or service. This is also not equitable to retirement pay percentage of other retirees who have served 20 years or more of active service. The reason for discharge should be changed from "Officer-Retirement - Disability, Temporary" to "Officer Retirement- Disability, Permanent" owing to the fact that his condition is expected to get worse even with medical and/or surgical treatment and also owing to the fact that there has been extensive medical documentation regarding the severity of his disabilities. 2. The applicant provides * Affidavit from his lawyer * Narrative Summary of his medical history * His appeal to the Physical Evaluation Board * Request for Impartial Medical Review * Request for Impartial Medical Review * DA Form 3349, Physical Profile * Exam Findings * Email to ARBA * DA Form 3947 Medical board Proceeding * Response to Appeal with the Medical Evacuation Board 3. A review of the applicant’s service record shows: a. The applicant was born in September 1953. He was appointed as a Reserve Commissioned Officer of the Army on 5 June 2003. He entered active duty on 4 August 2003. He was advanced to major in October 2004. b. He served in Afghanistan 4 February 2006 to 16 April 2006 and in Iraq from 1 June 2009 to 28 March 2010. c. He was evaluated for unfitness in accordance with DODI 1332.18, Enc. 3, App. 2, paragraph 5, Presumption of Fitness. The case was adjudicated in accordance with Title 10, U.S. Code, section 1251. (1) Based on the Narrative Summary (NARSUM) signature dated 8 April 2015, his NARSUM was prepared after he was within 12 months of his mandatory retirement date (MRD) because of reaching age 62 on 30 September 2015. During the presumptive period, the applicant did not develop a new condition that would prevent further duty were he not retiring; nor did he experience a serious deterioration of a chronic condition that would prevent further duty were he not retiring. (1) (2) In consideration of Bilateral lumbosacral radiculopathy (mild), Lumbosacral spondylosis without myelopathy, treatment has continued on a regular basis with the symptoms of the condition managed by proper medication and the treatment regimen. The evidence indicates the applicant was performing duties befitting his experience before entering the presumptive period. (DA Form 3947, Medical board Proceeding, DA Form 3349, Physical Profile, DA Form 7652 Commanders Statement, NARSUM, VA Rating Decision, C&P Exam, AHLTA Records). (3) He was fit for the following conditions: Right shoulder sub acromion impingement and AC arthritis, sip arthroscopy, healed, with residuals; Medically Acceptable. Right shoulder arthroscopy scars; cervical spondylosis without myelopathy. Cervical spine strain; Obstructive sleep apnea, Hypertension; Bilateral tinea Pedi’s; Bilateral onychomycosis; Erectile dysfunction; Benign prostatic hypertrophy, w/urinary urgency, Normal hearing, right and left ears. In full consideration of DODI 1332.18, Enc. 3, App. 2, to include combined, overall effect, the conditions are not unfitting because the MEB indicates these conditions meet retention standards; does not indicate that any of these conditions cause profile limitations (functional activities a-j); and does not indicate that performance issues, if any, are due to these conditions. d. On 11 June 2015, an MEB convened and, after consideration of clinical records, laboratory findings, and physical examinations, found he was diagnosed with the conditions listed below and recommended for referral to a PEB * Bilateral Lumbosacral (mild); Medically Unacceptable IAW (In Accordance with) Army Regulation(AR) 40-501 (Standards of Medical Fitness) paragraph 3-39c * Lumbosacral spondylosis without myelopathy; Medically Unacceptable, IAW AR 40-501 e. On 16 June the applicant requested an Impartial Medical Review (IMR) with a focus on the, Bilateral Lumbosacral radiculopathy (severe), Lumbosacral spondylosis without myelopathy and Cervical Spondylosis with myelopathy. During the review the doctor agreed the Lumbosacral spondylosis without myelopathy was the correct diagnosis but sided with the MEB in the other two areas. f. On 7 July 2015, after having been counseled, the applicant indicated he reviewed the contents of the MEB, disagreed with the findings and recommendations, and authenticated the DA Form 3947 (MEB Proceedings) with his signature. He acknowledged that he reviewed the contents of the MEB, physical profile, and narrative summary; he understood the PEB would only consider the conditions listed on his physical profile. He agreed that the MEB accurately covered his medical conditions at the time g. On 13 July the applicant appealed to the MEB in reference to the IMR (Impartial Medical Review) finding: a. * he stated he believes the diagnosis "Bilateral lumbosacral radiculopathy (mild)" is inaccurate and should instead be described as "(severe)" * he requested the MEB change the diagnosis "Lumbosacral spondylosis without myelopathy to state "with myelopathy” * he requested the MEB change the "Medically Acceptable" diagnosis "Cervical spondylosis without myelopathy" to state "with myelopathy" and render it "Medically Unacceptable” h. The MEB carefully reviewed the available medical records and associated documents, including the documents provided by counsel. The MEB did not find sufficient cause to modify its findings. Although the IMR (Impartial Medical Review) recommended that "lumbosacral spondylosis with myelopathy" was correct, the medical evidence in this case does not support the presence of "myelopathy for Bilateral lumbosacral radiculopathy (mild). i. A formal PEB convened on 19 April 2016 at the National capital Region. His case was adjudicated as part of the Integrated Disability Evaluation System (IDES). During formal proceedings, the PEB reevaluated all available medical and performance records to include sworn testimony and exhibits provided by the applicant. The formal PEB found the applicant fit for duty and his disposition be “Fit.” A DA Form 199-1 reflected the findings of fitness. j. The applicant was honorably retired from active duty on 30 April 2016. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired in accordance with Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), chapter 6-24 due to maximum age. He completed 12 years, 8 months, and 27 days of creditable active military during this period. 4. The Army review Boards Agency senior medical advisor rendered an advisory opinion on 19 December 2016. He opined. a. The applicant did not meet medical retention standards for several conditions IAW (in accordance with) Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. As summarized above the PEB found the applicant fit for duty. b. The applicant met medical retention standards for multiple other conditions IAW (in accordance with) Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. c. The applicant's medical conditions were duly considered during medical separation processing (IDES - Integrated Disability Evaluation System). a. d. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge and retirement in this case. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and he responded on 19 January 2017 and stated: a. The opinion - in short erroneously found no evidence of a medical disability or condition supporting a "change to the character or reason for the discharge and retirement in this case. As additional evidence to contradict the Medical Advisory Opinion, the applicant is providing a Veterans' Administration decisional document from 7 December 2016. The VA has recognized that the applicant overall medical condition deteriorated following his deployment to Iraq. Since January 2012, he has since received bi-monthly epidural steroid injections for the lumbar and cervical problems. b. It is the applicant’s position that the MEB was improperly changed to an MMRB. His long history of medical profiles and inability to complete a physical fitness test because of the conditions begs the question as to why he was not transferred to a Warrior Transition Battalion or processed through an MEB earlier. The record clearly supports that his conditions deteriorated post deployment. c. The applicant takes the position that medical board personnel at Walter Reed and the VA Medical Center had access to all his relevant medical records. It is conceivable that the PEB would find him fit for duty. The VA which is the gold standard - has rated him at 100 percent disabled, as evidenced by the attached decisional document. Under the "Wounded Warrior Act", 10 USC§ 1216(a), the VASRD and the VA ratings are the gold standard and are dispositive. The PEB plainly abused their discretion in failing to fully account for the full scope of his disabilities and in finding him fit for duty. 8. By regulation, conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness. 9. Also by regulation, the PEB will presume Soldiers to be pending retirement when the Soldier’s date of referral to the DES is after any of the circumstances listed below. * the Soldier’s request for voluntary retirement has been approved * an officer is within 12 months of mandatory retirement due to age or length of service * an officer or enlisted is within 12 months of mandatory removal date and will be retirement eligible 10. By law, the VA may 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 8. 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 employability or social or industrial adaptability of the individual concerned. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the medical advisory’s finding that no evidence of a medical disability or condition which would support a change to the character or reason for the discharge and retirement in this case, as well as the VA and the Department of the Army having different evaluation systems in determining disability ratings, the Board concluded that there was insufficient evidence to show that there was an error or injustice which would warrant making a change to the narrative reason for separation. 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. 6/4/2019 X CHAIRPERSON Signed by: 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. Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), a mandatory retirement is required by law and is initiated by HQDA. An officer must be retired on the date established by the applicable statute unless specifically provided by law (10 USC 640). An officer may request retirement and be retired voluntarily on his or her mandatory retirement date. 2. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement. Chapter 3 of the regulation gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. a. Paragraph 3-1 states that 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. The Soldier will not be declared physically unfit for military service because of- disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. b. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of a 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 service. c. Paragraph 4-17 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. d. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. The VA can evaluate a veteran throughout their a. lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. e. Appendix B, paragraph f of that regulations states conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness. 4. AR 635-40, paragraph 5–5 covers the presumption of fitness. It states, the DES compensates disabilities when they cause or contribute to career termination. Service members who are pending retirement at the time they are referred for disability evaluation are presumed fit for military Service as set forth below. a. Soldiers in the presumptive periods of “b” below are eligible to be referred to the DES when they have medical impairments that do not meet the medical retention standards according to AR 40–501. With the exception of unfit Soldiers approved for continuation, these Soldiers enter the PEB phase of the DES under the rebuttal presumption that they are physically fit. b. Presumptive period. The PEB will presume Soldiers to be pending retirement when the Soldier’s date of referral to the DES is after any of the circumstances listed below. (1) The Soldier’s request for voluntary retirement has been approved. Revocation of voluntary retirement orders for purposes of referral into the DES does not negate application. (2) An officer is within 12 months of mandatory retirement due to age or length of service. (3) An officer or enlisted is within 12 months of mandatory removal date and will be retirement eligible. 5. Title 38, USC, sections 1110 and 1131, 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.