ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20170001502 APPLICANT REQUESTS: medical retirement due to physical disability in lieu of an honorable discharge due to parenthood. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 149, Electronic Signature Page * VA Form 3288 (Request for and Consent to Release of Information from Individual’s Records) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Compensation and Pension Examination, dated 20 September 2013 * VA Urology Clinic Outpatient Note * TRICARE/Health Net Federal Services Instructions for Authorizing Disclosure of Medical or Dental Information * DA Form 2870 (Authorization for Disclosure of Medical or Dental Information) FACTS: 1. The applicant did not file within the 3 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 has a combined total VA rating of 100 percent for service- connected disabilities. His injuries are physical and mental due to his service. He requests his medical records be reviewed and corrected to show he was medically retired by the U.S. Army vice separated for parenthood. He states his current VA ratings are as follows: * Bilateral pes planus – 50 percent * Right vastus medialis muscle rupture – 10 percent * Chronic right ankle sprain – 10 percent * Right knee osteoarthritis – 10 percent * Right hip osteoarthritis – 10 percent * Left vastus medialis muscle rupture – 10 percent * Left hip strain – 10 percent * Right shoulder impingement syndrome – 10 percent * Chronic left ankle sprain – 10 percent * Post-traumatic Stress Syndrome (PTSD) – 70 percent 3. The applicant enlisted in the Regular Army on 26 March 1996 for a 4-year period. He reenlisted on 15 April 1999 for a 3-year period and again on 27 June 2001 for a 5-year period. He was promoted to the rank of sergeant (SGT)/pay grade E-5 on 20 May 1999. 4. He had two combat tours. He served in Operation Enduring Freedom (Afghanistan) from 28 January to 15 July 2002 and then Operation Iraqi Freedom (Kuwait/Iraq) from 31 March to 18 December 2003. 5. Orders 222-0013 issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Kentucky on 9 August 2004 discharged the applicant from the Regular Army effective 13 August 2004. The orders state he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 5-8 (for parenthood). Further instructions included a statement that he was authorized one/half separation pay in accordance with Title 10, U.S. Code, section 1174 due to his involuntary separation prior to his expiration of his term of service. 6. The applicant’s separation packet is not filed in his electronic military personnel record. 7. Concurrent with the publication of his separation orders, the applicant was issued a DD Form 214 showing he was separated under the provisions of Army Regulation 635- 200 for parenthood. 8. On 20 April 2017, the Army Review Boards Agency staff sent the applicant a letter requesting he provide the Agency with a copy of his medical documents supporting his post-service diagnosis of PTSD or other behavior health or physiological conditions. The applicant did not respond nor did he provide medical records to support his contention. 9. In the processing of this case, the Army Review Boards Agency staff psychiatrist reviewed the applicant’s record as required by law. She reviewed his application, applicant provided medical documents, the military electronic medical record and his VA electronic medical record through the Joint Legacy Viewer. She did not have access to his paper service treatment record. She states he self-reported he has PTSD rated at 70 percent by the VA. He provided a 20 September 2013 VA Compensation and Pension Examination which shows he was diagnosed with depressive disorder, not otherwise specified. She reviewed his military electronic medical record which shows he underwent a physical examination on 12 January 2010. There are no behavioral health notes within his electronic medical record. There is no evidence showing the applicant had a permanent physical profile for the psychological factor. Thus, there is no evidence showing he failed to meet the military psychiatric retention standards in accordance with Army Regulation 40-501 (Standards of Military Fitness). A review of his VA records shows as of 3 March 2015, the VA had diagnosed him with PTSD and an unspecified depressive disorder which were likely to have been incurred or were caused by his combat stressors (experiences). She concludes by stating based on insufficient evidence she does not recommend referral into the Integrated Disability Evaluation System for consideration of a medical retirement. A copy of the complete medical advisory was provided to the Board for their review and consideration. 10. On 27 July 2017, the staff of the Agency sent the applicant the medical advisory opinion for his review and rebuttal. The applicant did not respond. 11. 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 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command- referred for a fitness-for-duty medical examination. b. 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. 12. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and a medical advisory opinion. The Board considered the applicant’s statement, his record of service, the reason for his separation, the lack of a separation packet, his post-service medical assessments and the conclusions of the advising official. The Board found insufficient evidence to show that the applicant failed medical retention standards for any condition while in service and the applicant provided none. The Board agreed with the advising official’s conclusion that disability processing was not warranted. Based on a preponderance of the evidence, the Board determined that the reason for the applicant’s separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. 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 is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), 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. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. 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. 3. 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. a. Paragraph 3-2 states 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. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 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, 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. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides policy guidance pertaining to the separation of enlisted personnel. a. Chapter 2, provides guidance on the discharge or release form the Active Army upon termination of enlistment and other periods of active duty or active duty for training. The discharge of an enlisted person for the reason of expiration of term of service will be effective on the date of completion of his/her service and that service will be characterized as honorable. b. Chapter 5 (Separation for the Convenience of the Government) states the separation of enlisted personnel for the convenience of the Government is the prerogative of the Secretary of the Army (SA). The separation of any enlisted member of the Army under this authority will be based on an SA determination that separation is in the best interests of the Army. Before involuntary separation under this paragraph, the notification procedure will be used. A member being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an entry level separation. 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. ABCMR Record of Proceedings (cont) AR20170001502 6 1