ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20160018006 APPLICANT REQUESTS: his discharge due to resignation be modified to place him on the permanent disability retired list. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Statement * Department of Veterans Affairs Medical Records (VA) * Medical History documents * Officer Evaluation Record (OER) 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. At the time of his discharge, he was unfit for duty due to his major depressive disorder, recurrent and panic disorder limitation of motion of cervical spine, left knee problems, right knee patellofemoral pain syndrome, and/or such other conditions as the record may reflect. Therefore, in addition to the honorable discharge that he received, he should have also been assigned a disability rating and placed on the permanent disability retired list. His military service and Department of the Army Veterans Administration (VA) records show his continuing battle with depression and anxiety prior to his discharge, which continues to present day. b. His limitation of motion of cervical spine and knee problems in both knees are also documented in his military service records which made it difficult for him to run and do other physical activity. This disability also continues to present day. While not binding on this Board, it is persuasive that the VA has determined that each of these disabilities is service-connected' and arose during his time of military service. Due to these mental and physical disorders, He struggled with his weight in the service and that battle has continued to present day. Therefore, as a result of one or more of these conditions, and/or such other conditions as the record may reflect, he request that this Board correct his discharge to assign him an appropriate disability rating and place him upon the permanent disability retired list, effective 1 July 2001. 3. The applicant provides: * Medical examination documents that reflect his psychological evaluation * Doctor’s mental assessment that reflect his diagnosis 4. A review of the applicant’s service record shows: a. He was appointed as a Reserve commissioned officer of the Army and West Virginia Army National Guard (WVARNG) on 16 May 1999. He was assigned to the Chemical Corp. He entered active duty on the same date. b. The applicant was honorably released from active duty on 1 July 2001 and transferred to the U.S. Army Reserve Control Group. c. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), chapter 2-5 for miscellaneous/ general reasons. He completed 2 years, 1 months, and 25 days of creditable active military during this period. d. On 2 July 2001, he again executed an oath of office and was appointed as a commissioned officer of the WVARNG. e. On 7 April 2002, an informal line of duty informal investigation was open on the applicant for chipping his tooth on 27 March 2002. It was approved in line of duty only for chipped tooth on 13 July 2002. f. He stated while conducting training at Fort Irwin California. He was in the process of attaching overlays to a map board, he was tearing clear tape with his mouth. As he tore off a piece, he felt his front teeth crunch and a piece of his right front tooth came off in his hand. . He also was informed of his rights by counsel. Captain PM agreed with the applicant account of the events in a sworn statement dated 7 April 2002. g. On 9 April 2002, the applicant’s physician cleared him fit for duty. h. He was honorably discharged from the ARNG and a Reserve of the Army on 1 September 2003. i. On 5 October 2015 during a psychological evaluation the applicant was diagnosed with two mental disorders major depressive disorder and panic disorder. j. During the doctor’s assessment on 8 October 2015 the symptoms that apply to the applicant diagnoses are: * Depressed mood * Anxiety * Panic attacks that occur weekly or less often * Chronic sleep impairment * Flattened affect * Disturbances of motivation and mood * Difficulty in adapting to stressful circumstances, including work or a work like setting 5. The Army review Boards Agency medical advisor rendered an advisory opinion on 8 June 2017. He stated. a. Review of the applicant's military medical records indicates that he was not diagnosed with a Behavioral Health condition while on active duty. In his 9 March 2001 Report of Medical History, the applicant indicates that he had problems with frequent trouble sleeping, depression/excessive worry, nervous trouble of any sort, periods of unconsciousness. He also indicates that he had a depressive episode prior to entering active duty (October 1996-February 1997), stating "Have had no relapses since." The examining physician notes in this separation Report of Medical History "history of anxiety/depression with insomnia." b. This is the only documentation of any Behavioral Health symptoms or conditions in the applicant's military records. There is no documentation in the military records of the applicant being prescribed psychiatric medications, receiving psychotherapy or being psychiatrically hospitalized while on active duty. While on active duty, he received no duty limiting profiles and received "Best Qualified" ratings for his work performance. c. Therefore, based on the available documentation, there is no evidence the applicant suffered from an unfitting Behavioral Health condition while on active duty and referral of his record for consideration of military medical disability or retirement is not warranted at this time. 6. The Army Review Boards Agency medical advisor rendered an advisory opinion on 12 June 2017. He stated: a. The applicant is currently 80 percent VA service connected overall with major depressive disorder at 50 percent from 19 Dec 2014; migraine headaches at 50 percent, cervical strain at 20 percent (10 percent from 2 July 2001 and 20 percent from 31 November 2011); limited flexion of right knee at 10 percent. Attrition or bruxism (claimed as dental condition) at 0 percent effective 19 October 2015. b. The ARBA psychiatrist's medical advisory opinion dated 8 June 2017 addressed the BH (behavioral health) aspects of this applicant's petition. Based on the available documentation, there is no evidence the applicant suffered from an unfitting Behavioral Health condition while on active duty and referral of his record for consideration of military medical disability or retirement is not warranted at this time." c. The applicant's medical conditions were duly considered during medical separation processing. 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 in this case. 7. The applicant was provided with a copy of these advisory opinions to give him an opportunity to submit a rebuttal and he did not respond. 8. By regulation (AR 635-40), 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. 9. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the 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 the applicant failed to provide a rebuttal to such a finding, the Board concluded there was insufficient evidence to warrant a change in 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. 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, 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. Army Regulation (AR) 40-501 (Medical Services – Standards of Medical Fitness) governs regulation governs Medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, Medical fitness standards for retention and separation, including retirement, Medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments. It also governs Medical standards and policies for aviation, Physical profiles, and Medical examinations. 3. AR 635-40 (Physical Evaluation for Retention, Retirement or Separation), 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 or her office, grade, rank, or rating. If a soldier is found unfit because of physical disability, this regulation provides for disposition of the soldier according to applicable laws and regulations. a. 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. b. The VA Schedule for Rating Disabilities (VASRD) is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Because of differences between Army and VA applications of rating policies, differences in ratings may result. Unlike the VA, the Army must first determine whether or not a Soldier is fit to reasonably perform the duties of his office, grade, rank, or rating. Once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD. These percentages are applied based on the severity of the condition at the time of separation. 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, USC, 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, 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. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. ABCMR Record of Proceedings (cont) AR20160018006 5 1