ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20170000508 APPLICANT REQUESTS: his honorable discharge due to Completion of Required Active Service be changed to a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Rating Decision * Purple Heart (PH) Orders 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 he was discharged at the end of his service obligation instead of being medically retired for injuries sustained during his deployment to Afghanistan. He experienced two improvised explosive device (IED) blast. He received a PH due to injuries he sustained in the second blast. Upon returning to Fort Carson, CO following his deployment, his unit was disbanded. He did not have the assistance of his chain of command or a caseworker to address his severe medical issues. He was receiving traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) treatment from the military before his discharge; however, he was not given enough time to recover, nor was he given the chance to recuperate in a Warrior Transition Unit (WTU). VA has granted him service connected disability for TBI and PTSD (70 percent each). 3. The applicant served in Afghanistan from 29 May 2011 through 8 May 2012. 4. Standard Form 600 (Chronological Record of Medical Care) dated 15 April 2011, shows the applicant was seen for Concussion Syndrome due to falling and striking his head while doing physical training. Its further states the applicant fell into a small ditch and was having some dizziness which had subsided, he just has headache at this time. 5. On 30 April 2012, the applicant was awarded a PH for wounds received in action on 2 April 2012. 6. Standard Form 600 dated 16 May 2012, show the applicant was seen for post- deployment TBI. It states on 2 April 2012, the applicant was on dismounted patrol and was within 2 meters of an IED blast. He was in full gear, his Kevlar was not damaged, his head struck the ground and he was thrown backwards approximately 10 feet. The applicant did not experience loss of conscious. The applicant stated he was dazed/confused afterwards and had fuzzy memories of the event. He had a headache for a week afterward and was dizzy for 24 hours and was off duty for 48 hours. He denied any ongoing symptoms. 7. On 12 February 2013, the applicant was given a temporary profile due depression, anxiety, PTSD, Bipolar, or Psychotic Disorder Psych profile and lower back pain profile Spine Amber. The profile was to expire on 19 March 2013. 8. On 11 July 2013, the applicant was given a temporary profile due to depression, anxiety, and lower back pain. The profile was to expire on 31 July 2013. It is indicated the profile is an extension of a temporary profile first issued on 31 May 2013. 9. On 28 November 2013, the applicant was honorably released from active duty due to completion of required active service and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement). He completed 3 years, 3 months, and 20 days of net active service this period. 10. On 5 June 2017, an Army Review Boards Agency (ARBA) clinical psychologist provided an advisory opinion. The psychologist concluded based on thorough review of available medical records, there is evidence the applicant met criteria for PTSD and TBI during his time in service. Although he was determined to meet medical retention standards at the time of separation, it is uncertain if his medical conditions of TBI and PTSD were appropriately considered during separation processing. The applicant was deemed medically acceptable; however, there is evidence of social and occupational impairment, to include several temporary profiles indicating functional limitations to include recommendations that the applicant not attend training in order to remain in therapy and that he was medically non-deployable until cleared to deploy with a written waiver by the Command Surgeon. In addition, his final temporary profile (11 July 2013) indicated he needed an MRI and follow-up with pain management and behavioral health. Given his impairment that stemmed from an in-service stressor, it is likely the applicant’s behavioral health conditions could have been considered for a MEB prior to separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. The applicant was provided a copy of the advisory opinion on 8 June 2017, and given an opportunity to submit comments. He did not respond. 12. Army Regulation 635-40 (Standards of Medical Fitness) establishes the Army Disability Evaluation System (DES) 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. 13. Defense Directive-Type Memorandum (DTM 11-015, 19 December 2011, provides for the integrated DES (IDES). The IDES is the joint Department of Defense (DOD) - VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a service- connected disability BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the medical advisory opinion. The Board discussed the applicant’s statement regarding in-service treatment, his Purple Heart, his medical records and the advising official’s conclusion that it is likely the applicant’s behavioral health conditions could have been considered for a MEB prior to separation. The Board determined there was sufficient evidence to warrant a further evaluation of the applicant’s in-service medical conditions. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to the Office of The Surgeon General for review to determine if his conditions failed to meet retention standards and warranted consideration for processing by the disability evaluation system. a. If a review by the Office of The Surgeon General determines the evidence supports it, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to her discharge. b. In the event that a formal PEB becomes necessary, the individual concerned may be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be separated or retired for disability, these proceedings serve as the authority to issue his the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief without benefit of the review described above. 2 July 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. 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, 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. 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. 2. 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. 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. 3. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating. A physical profile rating of "3" in any of six rated categories (P-physical stamina, U-upper extremities, L-lower extremities, H-hearing, E- eyes, S-psychiatric) is a basis for referring a Soldier to the PDES. 4. Defense Directive-Type Memorandum (DTM 11-015, 19 December 2011, provides for the integrated DES (IDES). The IDES is the joint Department of Defense (DOD) - VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a service- connected disability. 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 of less than 30 percent. 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.