ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20160019391 APPLICANT REQUESTS: an increase in his Army disability rating. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) * DA Form 3349 (Physical Profile) * Record of Medical Care * Compensation and Pension (C & P) Exam Report * Excerpt of Veterans Affairs (VA) Disability Diagnosis * Excerpt from Medical Records * Audiologic Evaluation * Progress Notes FACTS: 1. The applicant states, he received a “0” rating for his left ear mixed hearing loss base, because the examiner stated there was a language barrier for the speech discrimination test. He states the Army never did a hearing test, and based everything off of the test the VA conducted. He states that his hearing is getting worse and he would like to be granted a rating based on his submitted records. 2. The applicant provides: a. DA Form 199, dated 16 November 2015, which states the board found the Soldier was physically unfit, recommended a rating of 50% and that the Soldier's disposition be permanent disability retirement. He was found unfit at 40% for lumbar intervertebral disc disease with herniation of L4-L5, and 10% for left shoulder residual labral tear status post arthroscopy. b. DA Form 3349, which states the applicant received two permanent hearing profiles, and one for left shoulder pain. c. Record of Medical Care, which provides a medical history of the applicant. d. Compensation and Pension Exam Report, dated 14 April 2015, which states the applicant completed a hearing test as part of his C&P exam. e. Excerpt of Veterans Affairs (VA) Disability Diagnosis, which states the applicant is service connected for hearing loss. f. Excerpt from Medical Records, dated 12 April 2015. g. Audiologic Evaluation, dated 25 March 2016. h. Progress Notes, printed 9 November 2016. 3. A review of his service records shows: a. He enlisted on 16 August 1994 in to the Regular Army (RA). b. He was discharged on 4 June 1997 for immediate reenlistment. He reenlisted in to the RA on 5 June 1997. He served in Yugoslavia from 26 July 1999 to 15 December 1999. c. He was discharged on 10 August 2000 for immediate reenlistment. He reenlisted in to the RA on 11 August 2000. d. He was discharged on 17 October 2002 for immediate reenlistment. He reenlisted in to the RA on 18 October 2002. He served in Germany from 12 October 2003 to 29 January 2008 and Iraq from 26 February 2003 to 19 September 2003 and from 10 February 2004 to 11 February 2005. e. He was discharged on 3 October 2006 for immediate reenlistment. He reenlisted in to the RA on 4 October 2006. He served in Iraq from 4 September 2006 to 20 November 2007 and Afghanistan from 1 May 2011 to 22 April 2012. f. On 21 February 2016, his DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that he was discharged under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 (Procedures). He had 21 years, 6 months and 6 days of active service. It shows in: * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): * Iraq Campaign Medal with Four Campaign Stars * Afghanistan Campaign Medal with 2 Campaign Stars * Bronze Star Medal (2nd Award) * Meritorious Service Medal (2nd Award) * Army Commendation Medal with V Device * Army Commendation Medal (5th Award) * Army Achievement Medal (5th Award) * Meritorious Unit Commendation * Valorous Unit Award (2nd Award) * Army Good Conduct Medal (3rd Award) * National Defense Service Medal with Bronze Service Star * Armed Forces Expeditionary Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Kosovo Campaign Medal * Armed Forces Service Medal * Noncommissioned Officer Professional Development Ribbon (3rd Award) * Army Service Ribbon * Overseas Service Ribbon (5th Award) * NATO Medal * Combat Action Badge * Air Assault Badge * item 23 (Type of Separation), Retirement * item 24 (Character of Service), Honorable * item 25 (Separation Authority), AR 635-40, Chapter 4 * item 26 (Separation Code), SEJ * item 27 (Reenlistment Code), 4 * Item 28 (Narrative Reason for Separation), Disability, Permanent (Enhanced) 5. On 7 May 2019, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined: a. The available record does not reasonably support post-traumatic stress disorder (PTSD) or another boardable behavioral health condition(s) at the time of the applicant’s military service. b. The applicant did not meet medical retention standards for Left shoulder residual labral tear status post arthroscopy 2012, Lumbar intervertebral disc disease with herniation of L4-L5, Left ear mixed hearing loss and Tinnitus left ear in accordance with Chapter 3, AR 40-501 (Standards of Fitness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement or Separation) that were applicable to the applicant’s era of service. c. A review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the character, reason, rated condition(s), disability determination(s), disability rating(s), and/or combat relatedness for the discharge in this case. d. After comprehensive review of the medical and other records, the ARBA Medical Advisor concludes that there is insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability rating(s) recommended. e. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. Congress grants that role and authority to the VA, operating under a different set of laws. f. The applicant’s hearing condition does not meet Traumatic Service members’ Group Life Insurance standards or guidelines. The applicant is not eligible for award of benefits. No award is recommended. 6. On 14 May 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 7. On 18 April 2019, ARBA was contacted by a Tennessee Congressional Representative in reference to the applicant. ARBA responded on 19 April 2019, stating the applicant’s case was still in review. 8. On 29 June 2018, the applicant applied for Combat-Related Special Compensation and was approved at 100%. 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. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. The applicant was found unfit during a PEB and received a 50% disability rating. He requested to have his disability rating increased due to other medical conditions he contends were also unfitting during his period of service. The medical advisory official conducted a thorough review of his medical concerns and the PEB process, and found he had no additional unfitting conditions that would render an increase to his disability rating. The applicant was provided a copy of the advisory opinion for an opportunity to rebut the advisory opine; however, he did not respond. Based upon the preponderance of evidence, the Board determined there was no error or injustice in this case. 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 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. 2. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement or Separation), establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC). It 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. 3. 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. 4. Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. 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 at less than 30 percent. 6. 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, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019391 5 1