ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 7 June 2019 DOCKET NUMBER: AR20160017740 APPLICANT REQUESTS: physical disability retirement in lieu of honorable discharge due to a condition, not a disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Privacy Act Release Form * self-authored letter * DA Form 3822 (Report of Mental Status Evaluation), dated 24 January 2014 * Headquarters, 704th Military Intelligence Brigade separation memorandum, dated 21 February 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Army Board for Correction of Military Records (ARBA) letter * email correspondence with ARBA FACTS: 1. The applicant states: a. He should have gone through a Medical Evaluation Board (MEB) and qualified for physical disability retirement. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 does not apply to his situation. The Department of Veterans Affairs (VA) rated him as 70 percent disabled, but his discharge per paragraph 5-17 pertains to a medical condition, not a disability. He believes the error or injustice came about either because of his commander’s lack of education or laziness. b. He deployed to Afghanistan in 2011 and during his service there he was injured, but he refused to go home early because he wanted to stay until the end of the deployment. Thanks to his command sergeant major, who allowed him to stay until the end. After they returned from the deployment, medical professionals in the Orthopedics Clinic wanted to send him to an MEB because of his injuries, but he begged them not to because he just received a new assignment at Fort Meade, MD, as a Russian Linguist. c. At the time, he thought his injuries were temporary and it would just be a matter of time and therapy until he was fine, but it turned out the opposite and he became unable to do his job. At that point, they wouldn’t send him to the MEB because his permanent physical profile was changed to a temporary physical profile. All of his disabilities became classified as an adjustment disorder, which is how he was legally thrown out of the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) , paragraph 5-17, for a medical condition, not a disability. d. He does understand that linguist positions are limited and the National Security Agency needs them so badly that they cannot wait 1-2 years until an MEB process is over, so he got pushed out of the Army. He is so sorry for what he became, but he fails to see how a discharge under the provisions of paragraph 5-17 is an honorable discharge in his case. He received no compensation at all, so he’s thankful the VA exists, as the VA is all he has. In December 2015 he became disabled and lost his job. He can hardly sustain himself because his work history in the U.S. amounts to 6 years, most of which is his Army Service, which is not much for Social Security purposes. e. Of course you could say, “if you don’t like it, move back to Europe where you came from,” which he considered, but it’s impossible. In order to apply for the Top Secret Security Clearance, needed as a linguist, he had to renounce his Latvian citizenship. Along with his lost Latvian citizenship, all of his pension and disability funds in Europe are gone. He felt as if his home was here in the U.S., so he is not asking for compensation. He did it all 100 percent for country and was aware of what he was doing, thinking it was the right thing to do. But now, he is an alien in Europe and still not welcome in the U.S., regardless of what he does. f. The only way to fix this case is to go to Federal court against the U.S. Government; but he’s sorry, he will not go to court against his own Government that he trusted and believed. He thinks it is an absurd “honorable discharge” case, given his circumstances, and he cannot protect himself because of what he’s become. He is not asking for any back-pay or moral compensation. This is not about getting rich; it’s about survival. Please don’t let him end his life in a ditch or try to take his own life again. g. SOMEBODY, please just take his case and read it, exclaiming, “Oh my God! How did this happen?” and fix it. It’s just simple; review his medical information from the VA and fix his Army pension. And if Federal court is the one and only solution and there is nothing the Board can do for him, that’s fine. Just discard his letter. But the one thing that can be done, if not for him, but for that Soldier who is currently fighting in Afghanistan, is to change the law to disallow a combat veteran with disabilities to be discharged without undergoing a true MEB. That Soldier will then be protected from his own patriotism and lack of medical education and not have to go through all the shame, rejection, and denial that the applicant is now going through. He is so sorry for having bothered the Board. 2. The applicant enlisted in the Regular Army on 20 April 2009, and was awarded the military occupational specialty (MOS) 88M (Motor Transport Operator). 3. He served in Afghanistan from 8 January 2011 through 4 January 2012. While deployed, he reenlisted in the Regular Army on 7 April 2011, for the Army Training Reenlistment Option to reclassify into MOS 35P (Cryptologic Linguist). His DA Form 3340-R (Request for Reenlistment or Extension in the Regular Army), shows he was fully qualified for the requested action and there is no indication he was pending an MEB. 4. A DA Form 1059 (Service School Academic Evaluation Report), dated 26 September 2012, shows he attended the Non-Target Cryptologic Language Analyst Course at Goodfellow Air Force Base, TX, from 6 August 2012 through 27 September 2012 and successfully achieved course standards. He was subsequently awarded MOS 35P. 5. U.S. Army Installation Management Command Orders 158-0028, dated 6 June 2012, show he was reassigned on permanent change of station to 741 Military Intelligence Battalion, Company C, Fort Meade, MD effective 10 November 2012, to serve in MOS 35P. 6. A DA Form 3822, dated 24 January 2014, shows he underwent a mental status evaluation on the date of the form, which shows: * he was cleared for administrative separation under the provisions of Army Regulation 635-200, paragraph 5-17 * he was found unfit for duty due to personality disorder or other medical condition that did not amount to a medical disability * he had no obvious cognitive impairments, was cooperative, had normal perceptions, was unlikely to be impulsive, and not dangerous * he could understand and participate in administrative proceedings and could appreciate the difference between right and wrong * he was diagnosed with adjustment disorder with depressed mood and back pain due to lumbar disc degeneration * he was given a temporary physical profile rating of “3” for S (psychiatric), due to expire on 9 February 2014 * he screened negative for post-traumatic stress disorder * he met psychiatric criteria for expeditious administrative discharge in accordance with chapter 5-17, Army Regulation 635-200 7. His complete discharge packet is not in his available records for review; however, a Headquarters, 704th Military Intelligence Brigade memorandum, dated 21 February 2014, shows the approval authority reviewed the applicant’s separation packet and after careful consideration of all matters, directed his honorable separation prior to the expiration of his current term of service under the provisions of Army Regulation 635-200, paragraph 5-17. 8. His DD Form 214 shows he was honorably discharged on 26 April 2014, under the provisions of Army Regulation 635-200, paragraph 5-17, for a condition, not a disability after 4 years, 11 months, and 15 days of net service. 9. On 31 July 2017, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion, which states: a. A review of the applicant’s electronic service medical records shows he had multiple orthopedic and physical therapy visits in 2009 and 2010. An Orthopedic Clinic evaluation on 12 November 2010 for left ankle pain shows he sprained it in July 2009 and again 2 days prior. A theater clinic note on 19 May 2011 shows he stepped on a rock and fell down, causing left ankle pain for 1 week. b. A clinic visit on 24 July 2013 shows he had a follow-up visit for lumbar disc degeneration and chronic low back pain he had for 7 months. He had been on temporary physical profiles since that time and was unable to take the Army Physical Fitness Test. He did physical therapy and massage therapy and the chiropractor states nothing more could be done. He was to continue with his temporary physical profile for another month then start a permanent physical profile of “3” for the lower extremities (L). On 1 August 2013, his case was reviewed and determined he had not reached his medical retention decision point (MRDP), as he had not exhausted all treatment options and was on a physical profile for less than 1 year. On 20 August 2013, notes show his chronic left ankle pain needed a follow up with orthopedics as he had a permanent physical profile for the ankle for over 3 years. c. The applicant’s first behavioral health visit was on 9 October 2013 for evaluation of adjustment disorder with depressed mood. It was determined he did not meet the full criteria for PTSD. On 11 December 2013, he had a behavioral health follow up where in he stated he would very much like to separate from the military. His permanent physical profile pertained only to his psychiatric condition and polypharmacy. His permanent L3 profile was downgraded to L2 after MEB evaluation for his chronic low back pain. Although he was deemed fit for non-behavioral health issues, it was strongly recommended he be separated for his behavioral health issues. d. During a behavioral health follow up on 23 January 2014 for reevaluation he was found unfit for duty due to a personality disorder or other mental condition that did not amount to a medical disability. e. A limited view of his VA records shows he has a current service-connected disability rating of 100 percent overall with a 50 percent rating for PTSD, 10 percent rating for limited ankle motion, 10 percent for limited flexion of knee, 10 percent for degenerative arthritis of the spine, and 10 percent for varicose veins. f. The applicant’s records show he had adjustment disorder with depressed mood, but did not meet the criteria for diagnosis of PTSD at the time of his service. He met medical retention standards for low back pain, knee pain, left ankle pain, and all other physical conditions set forth in Army Regulation 40-501 (Standards of Medical Fitness). He did not meet criteria for MEB for behavior health as he had not reached a MRDP. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the reason for the discharge in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 10. In August 2017, the applicant requested an extension to his case to enable him to obtain his medical records from the VA. A 30-day extension was granted. 11. On 2 August 2017, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. He responded on 25 September 2017, stating he attached a copy of his VA claim showing his combined service-connected disability evaluation is 100 percent and he would like his discharge changed to reflect physical disability. 12. The VA letter the applicant provided a copy of, dated 26 May 2017, is a summary of benefits he currently receives from the VA. It shows his combined service-connected evaluation is 100 percent effective 1 March 2017 and he is considered to be totally and permanently disabled due solely to his service-connected disabilities. The conditions for which he received his disability rating are not listed on the letter. 13. Army Regulation 635-200, paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 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. 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 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. 15. 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. 16. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the record and the medical advisory opinion. The Board discussed the applicant’s statement and his response to the advisory opinion, his VA disability claim and the conclusion of the advising official that he did not meet the criteria for PTSD at the time of separation and that he met medical retention standards for the other conditions noted in his record. The Board determined that there was no error or injustice that required a correction to the applicant’s record. 2. After reviewing the application and all supporting documents, the Board found that 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 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 (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. 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. 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. Army Regulation 15-185 (Army Board for Correction of Military Records) 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. 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. ABCMR Record of Proceedings (cont) AR20160017740 4 1