IN THE CASE OF: BOARD DATE: 16 April 2020 DOCKET NUMBER: AR20170000623 APPLICANT REQUESTS: a medical disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) medical documentation and rating decisions FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, 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: a. He was separated from the service on 17 November 2014, primarily because he was considering the needs of the Army. He was dealing with health issues that were not allowing him to focus, concentrate, nor perform his job. All of his medical issues/conditions are well annotated in his health and medical records. Those service- connected medical issues cut his military career short, as his records will show he was a Soldier who was fast tracking in the U.S. Army (promoted to staff sergeant (SSG) within 5 years of service). He loved the military and being a Soldier. b. Upon his separation, he was informed by a local Veteran Service Organization representative to review his medical records/issues since he should have been medically board out instead of being separated at his expiration of term of service. Also, per Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, the Army should have granted him a medical separation/retirement. The negligence of some of the personnel within the medical field in his unit failed to determine the severity of his medical situation which has negatively affected him and his family in more ways than one, and will continue to do so for the rest of his life. He is requested the Board review his case and consider upgrading the narrative reason for separation from completion of required active service to medical retirement/permanent disability based on medical records, issues, and conditions in accordance with AR 635-40, chapter 4. 3. The applicant provided his VA medical documentation, showing he received medical treatment in 2009 and from 2014 to 2016 for depression and anxiety. Effective 18 November 2014, the VA awarded him a 30 percent (%) rating for generalized anxiety disorder and several other medical conditions. The generalized anxiety disorder was changed to Post-Traumatic Stress Disorder (PTSD) and increased to 70%, effective 22 June 2016. 4. Review of the applicant’s service records show: a. He served in the Regular Army from 18 November 2008, for 6 years. He held military occupational specialty (MOS) 15J (OH-58D/Armament/Electrical/Avionics Systems Repairer). b. He served in Afghanistan from 18 March 2010 to 27 February 2011 and from 24 August 2012 to 12 May 2013. He was promoted to SSG on 1 May 2013. c. He was honorably released from active duty on 17 November 2014, under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service. He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). d. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 years of net active service, which included 1 year, 7 months, and 29 days of foreign service. e. He was honorably discharged from the USAR on 25 October 2016. 5. An advisory opinion was received from the Special Medical Staff Officer, Army Review Boards Agency, on 12 March 2020, in the processing of this case. The medical advisor reviewed the record for alleged medical condition(s) that may have warranted separation through medical channels or medical condition(s) not considered during medical separation processing. The medical advisor stated: a. The record supported the applicant deployed into a combat theater of operations twice while serving on active duty. There was no indication from the record to indicate he was ever actually involved in any direct combat operations against an armed enemy force personally, but due to his symptoms he was subsequently diagnosed with service- connected PTSD by the VA along with several other service connected medical and behavioral health conditions. Although he continued to perform well as a Soldier and within his MOS throughout his time on active duty in the Army, it was conceivable that he was able to sufficiently suppress his symptoms to a degree to maintain functional activities required of him. b. The electronic medical record also supported that many of the conditions diagnosed as service-connected by the VA were present while he was on active duty and he did receive several duty-limiting profiles during that time period. The record indicated he was diagnosed and has been undergoing treatment for PTSD following his discharge from the Army. Based on the symptoms he presented at the VA, it was apparent that there was a correlation between the issues he sought care for while on active duty and the subsequent diagnoses he received by the VA. c. Therefore, it was the opinion of the Agency medical advisor, based on the available information, that the applicant’s record in its entirety should be referred to the Disability Evaluation System (DES) for consideration of military medical retirement at this time. The applicant has a diagnosis of PTSD at present along with other medical and behavioral health conditions that, if they were diagnosed while he was on active duty, likely would have not met retention standards in accordance with AR 40-501 (Standards of Medical Fitness). 6. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. He did not respond. 7. By regulations: a. AR 635-200, action will be taken to separate a member upon expiration of term of service. b. AR 635-40, a Soldier may be discharged from the Army for not meeting retention standards in accordance with chapter 3 of AR 40-501 and awarded a disability rating assigned by the Army’s disability system. 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. 8. 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 and do not require reassessment of earlier determinations. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was sufficient evidence to refer the applicant’s record to the Integrated Disability Evaluation System (DES) for further evaluation and possible military medical retirement. 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: The Board determined that the evidence presented was 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 he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will 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. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him 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 that 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 changing his type of discharge without evaluation under the IDES. 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. Chapter 4 of the regulation stated a member would be separated upon expiration of term of service or fulfillment of service obligation. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that applied in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. Only the unfitting conditions or defects and those which contributed to unfitness would be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Soldiers who sustained or aggravated physically-unfitting disabilities must meet the following line-of- duty criteria to be eligible to receive retirement and severance pay benefits. The regulation stated: a. The mere presence of a medical impairment does 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. b. The VA Schedule for Rating Disabilities (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. Once a Soldier was determined to be physically unfit for further military service, percentage ratings were applied to the unfitting condition(s) from the VASRD. Those percentages were applied based on the severity of the condition at the time of separation. 4. 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 rated all disabilities using the VASRD. Ratings could range from 0% to 100%, rising in increments of 10%. 5. Title 10, USC, 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. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170000623 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1