IN THE CASE OF: BOARD DATE: 2 April 2020 DOCKET NUMBER: AR20160018880 APPLICANT REQUESTS: a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 3349 (Physical Profile) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care) * Orders Number * Department of Veterans Affairs (VA) letter 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 (ABCMR) 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 she is requesting to be medically retired retroactive to date of her separation from active duty. Her request is justified by her having been on a permanent profile for approximately half of the time during her period of service. She was unable to be retained due to injury. She was asked to reenlist by the command and would have been retained if not for service-related medical conditions. 3. The applicant provided her: * DA Form 3349, dated 15 July 2009, showing she was assigned a temporary profile for bilateral hip pain, with an expiration date of 10 October 2009 and Army Physical Fitness Test (APFT) restrictions and functional activities limitations * DD Form 214, for the period from 25 August 2008 to 25 October 2012 * SF, dated 14 May 2012, showing she received medical treatment for various medical conditions, to include hip joint pain and pregnancy * Orders Number, dated August * letter, dated 18 September 2016, wherein in the VA certified her receipt of service-connected compensation, effective 1 December 2014, with a combined rating of 90 percent (%) 4. Review of the applicant’s service records show: a. She enlisted in the Regular Army (RA) on 26 August 2008, for 4 years and 22 weeks. She held military occupational specialty 42A (Human Resources Specialist). She served in Afghanistan from 10 July 2010 to 27 June 2011. b. Orders Number, issued by Headquarters, 1st Armored Division and Fort Bliss, TX on August, reassigned her for separation processing, not by reason of physical disability, on October. c. She was honorably released from active duty on 25 October 2012, under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 16-7, by reason of Reduction in Force. She was transferred to the U.S. Army Reserve (USAR) Control Group, with a Reserve Obligation Termination Date of 10 August 2016. Her DD Form 214 shows she completed 4 years, 2 months, and 1 day of net active service, which included 11 months and 18 days of foreign service. d. Orders Number, issued by the U.S. Army Human Resources Command on 16 August 2016, honorably discharging her from the USAR, effective the same date. e. An advisory opinion was received from the Medical Advisor, Army Review Boards Agency, on 20 February 2020, in the processing of this case. The medical advisor reiterated the applicant’s period of military service and stated: (1) The applicant’s bilateral hip condition met retention standards in accordance with AR 40-501 (Standards of Medical Fitness). There were no findings on the August 2009 MRI of both hips. She submitted a temporary profile from 2009, before deployment with restrictions on both APFT and functional activity limitations. During deployment, restrictions were noted on completing a standard APFT. The possibility of a medical board initiation upon redeployment was discussed. However, review did not find any subsequent discussion of a Medical Evaluation Board. Soon after return from deployment, she became pregnant and was placed on a pregnancy profile. Hip pain increased during pregnancy prompting a more complete course of physical therapy. Postpartum examinations did not show painful pelvic examinations, and hip complaints were not documented. She was released from active duty 5 months after childbirth and transferred to USAR Control Group (Reinforcement). (2) The month following military release (November 2012), the VA Compensation and Pension Hip Conditions examination showed bilateral hip flexion and extension range of motion within the acceptable range per regulation and painful motion. Her medical conditions were duly considered during separation processing in accordance with policy in effect at the time. Based on the information currently available for review at the time, it was the opinion of the reviewer that a referral of the applicant’s record to the Army Disability Evaluation System for consideration of military medical retirement was not indicated at this time. f. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. The applicant did not respond. 5. By regulations: a. AR 635-200, a Soldier may be separated prior to expiration of enlistment or fulfillment of active duty obligation when authorization limitations, strength restrictions, or budgetary constraints require the RA or Reserve Component active duty enlisted force to be reduced in number. b. AR 40-501, a Soldier may be discharged from the Army for not meeting retention standards in accordance with chapter 3 of the regulation and awarded a disability rating assigned by the Army’s disability system. 6. By Title 10, USC: * Chapter 61 – provides for disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of disability incurred while entitled to basic pay * 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 7. By law, the VA may award ratings because of a medical condition related to service (service-connected) and affects the individual's civilian employability. The findings of the VA as to disability conditions are not binding on the Army. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the available documentation, the findings and recommendations of the medical advisor, and the lack of any rebuttal submitted by the applicant of those findings and recommendations, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s 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, United States Code (USC), section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Paragraph 16-7 (Early separation due to reduction in force, strength limitations, or budgetary constraints), Soldiers could be separated prior to expiration of enlistment or fulfillment of active duty obligation when authorization limitations, strength restrictions, or budgetary constraints required the Regular Army or Reserve Component active duty enlisted force to be reduced in number. The Secretary of the Army, or his/her designee, could authorize voluntary or involuntary early separation. For purposes of post-service benefits, early separation under this paragraph is considered to be for the convenience of the Government. Soldiers to whom this paragraph applied would be notified of early separation through appropriate channels by commanders. 3. AR 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, appointment, retention, and separation (including retirement). Once a determination of physical unfitness was made, the Physical Evaluation Board would rate all disabilities using the VA Schedule for Rating Disabilities (VASRD). Ratings can range from 0% to 100%, rising in increments of 10%. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, prescribed policy and implements the requirements of chapter 61 (Retirement or Separation for Physical Disability) of Title 10, U.S. Code (USC). The regulation stated: a. The mere presence of a medical impairment did not in and of itself justify a finding of unfitness. In each case, it was 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. A Soldier was physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. b. The VASRD was 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 could result. Unlike the VA, the Army must first determine whether or not a Soldier was fit to reasonably perform the duties of his office, grade, rank, or rating. Once a Soldier was determined to be physically unfit for further military service, percentage ratings were applied to the unfitting conditions from the VASRD. Those percentages were applied based on the severity of the condition at the time of separation. 5. By Title 10, USC, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 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. 6. 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. 7. Title 38, USC, sections 1110 and 1131, permits the Department of Veterans Affairs (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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160018880 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1