ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20170001799 APPLICANT REQUESTS: physical disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * numerous pages of civilian medical records * DD Form 2808 (Report of Medical Examination), dated 19 August 2008 * DD Form 2807-1 (Report of Medical History, dated 19 August 2008 * Standard Form 507 (Functional Capacity Certificate), dated 19 August 2008 * DA Form 3349 (Physical Profile),dated 2 October 2008 * Results of Retention Physical Examination memorandum, dated 8 October 2008 * Ireland Army Community Hospital, Fitness for Duty Evaluation memorandum, dated 26 October 2009 * Headquarters, 88th Regional Support Command Orders 11-026-00038, dated 26 January 2011 * Department of Veterans Affairs (VA) letter, dated 11 January 2017 * VA eBenefits screenshot, undated 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: a. He left active duty in 2006 in order to finish college and enroll in Officer Candidate School (OCS) upon completion of his Bachelor of Arts degree from Marquette University. While in college, he was a member of the U.S. Army Reserve (USAR) and was found unfit for duty due to injuries he sustained while in the service and was honorably discharged at his expiration term of service (ETS). b. The VA subsequently gave him a 70 percent service-connected disability rating, which rendered him unable to reenlist or enter an OCS program after leaving the USAR at his ETS date. He tried to enlist in both the U.S. Air Force and the Regular Army, but was hindered from doing so due to his disabilities. Since his service-connected injuries are keeping him from being able to serve, he is requesting his reason for discharge be changed to medical retirement. 3. The applicant enlisted in the Regular Army on 8 April 2003 and was awarded the military occupational specialty (MOS) 11B (Infantryman). 4. He served in Iraq in support of Operation Iraqi Freedom from 1 August 2003 through 31 March 2004. 5. A DA Form 2166-8 (Noncommissioned Officer Evaluation Report), covering the period October 2005 through February 2006, shows he: * had superior land navigation skills and was chosen to walk point during movements up to 8 kilometers during orienteering * earned the Army Physical Fitness Badge by scoring 290 on his Army Physical Fitness Test (APFT) * had excellent physical abilities and endurance and routinely completed 20 kilometer foot marches with loads of up to 65 pounds * led his team through eight successful iterations during squad live fire exercises 6. His DD Form 214 shows he was honorably released from active duty on 7 April 2006, due to the completion of required active service after 3 years of total active service and transferred to the USAR Control Group (Reinforcement). Among the decorations and badges he was awarded or authorized are the Parachutist Badge, Valorous Unit Award, Ranger Tab, Combat Infantryman Badge, and Expert Infantryman Badge. 7. His available service records from this period do not show: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 8. U.S. Army Human Resources Command Orders C-08-725904, dated 23 August 2007, show he was voluntarily released from the USAR Control Group (Reinforcement) and transferred to a USAR Troop Program Unit (TPU) effective 22 August 2007 with an ETS date of 6 January 2011. 9. The applicant provided numerous letters and medical reports from Lakeshore Medical Clinic. a. A Lakeshore Medical Clinic letter, dated 16 November 2007, states, the applicant was seen for a neurosurgical consultation for the evaluation of his back pain, annular tear, and foraminal stenosis at L5-S1. He was in a usual state of very good health until 27 or 28 September 2007 when he was playing football in the college club and he went to tackle someone, after which he developed left-sided thigh and calf pain and numbness and tingling that radiated into the last three digits of his left foot. Even since then, he also complained of back pain and leg pain on the right side. He underwent epidural injections to no avail with continued symptoms of pain. b. A letter dated 8 February 2008, shows he was diagnosed with lumbar degenerative disc disease and was scheduled for posterior lumbar laminectomy and fusion L5-S1 on 4 March 2008 at Sinai Hospital. c. A 21 March 2008 letter shows the applicant was recovering well post-surgery. His leg pain was much better than before the surgery and the motor exam demonstrated 5/5 strength of bilateral hips, knees, plantar flexors, dorsiflexors, and extensor halluces longus. 10. A DD Form 2808, dated 19 August 2008, shows the applicant underwent a medical examination for the purpose of determining the viability of his retention in the USAR. Its shows: a. The medical examiner annotated in item 44 (Notes) that the applicant’s range of motion in his lumbar spine was limited and he was unable to complete the back exam due to the amount of pain the applicant was in. b. The medical examiner determined the applicant was not qualified for service due to his diagnoses of depression, anxiety, asthma, traumatic brain injury (TBI), back pain, and knee pain. 11. A Standard Form 507, dated 19 August 2008, shows: a. The applicant assessed his functional capacity by annotating the following physical limitations: * bad knees * back fusion * asthma * depression, and * anxiety b. He annotated these physical limitations prevented him from all of the listed Soldier tasks, to include walking any distance with or without field gear, lifting and carrying over 20 pounds, being on his feet continuously for 4 hours, wearing a protective mask, deploying, jogging 2 miles, and completing any of the APFT events. He also noted he did not have either a temporary or permanent physical profile for his physical limitations c. The examining physician concurred with the applicant’s self-assessment and annotated these limitations were temporary. 12. A DA Form 3349, dated 2 October 2008, shows the applicant was given a permanent physical profile for depression, anxiety, asthma, head injury, back pain, and knee pain with a PULHES (physical capacity, upper extremities, lower extremities, hearing/ears, eyes, psychiatric) rating of “3 1 3 1 2 3” failing to meet retention standards. 13. An 8 October 2008 memorandum details the results of the applicant’s retention physical examination. It shows the results of the examination required command surgeon review and appropriate action. The noted physical abnormalities included an allergy to Penicillin, history of bilateral broken wrists and daily pain, stomach ulcers, hypertension and acute renal failure in May 2008. There were no documented limitations for profiling at the time of the exam. The applicant was deemed non- deployable. 14. An Ireland Army Community Hospital memorandum, dated 26 October 2009, states upon the request of the applicant’s immediate commander, a Fitness for Duty Evaluation was performed on 26 October 2009. The results of the evaluation show the applicant was found unfit for duty – non-active duty, not in the Line of Duty (LOD), and should be returned to his unit for administrative processing. Per the command’s request, the applicant’s conditions were not duty related and the applicant felt his conditions were duty related. 15. Headquarters, 88th Regional Support Command Orders 11-026-00038, dated 26 January 2011, show the applicant was honorably discharged from the USAR effective 26 January 2011, under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations). Through no fault of his own, he was held 20 days beyond his normal ETS date of 6 January 2011. 16. A VA letter, dated 11 January 2017, shows the applicant’s combined VA service connected disability rating is 70 percent. An accompanying VA eBenefits screen shot shows his service-connected disabilities to be the following: * right patellofemoral syndrome (right knee pain), 10 percent, effective 4 December 2009 * post-traumatic stress disorder, 50 percent, effective 4 December 2009 * degenerative disc disease with degenerative arthritis and spinal stenosis, status post fusion L5-S1, 10 percent, effective 18 July 2014 * radiculopathy, right lower extremity, 10 percent, effective 18 July 2014 * right shoulder supraspinatus tendonitis with subacromial bursitis, 10 percent, effective 4 December 2009 17. On 27 April 2017, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. The ARBA senior medical advisor concluded the applicant met medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) for his Regular Army period of service from 8 April 2003 through 7 April 2006, but did not meet medical retention standards for his period of service in the USAR. It was determined the applicant was unfit for duty, but his unfitting conditions were found to not be in the line of duty. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the reason for the applicant’s discharge. A copy of the complete medical advisory was provided to the Board for their review and consideration. 18. The applicant was provided a copy of the advisory opinion on 2 May 2017 and given an opportunity to submit comments, but he did not respond. 19. 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 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 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. 20. 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. 21. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40 with the following caveats: a. USAR or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 or discharged from the USAR per AR 135–175 (Separation of Officers) or Army Regulation 135–178 (Enlisted Administrative Separations). They will be transferred to the Retired Reserve only if eligible and if they apply for it. c. Reservists who do not meet medical retention standards may request continuance in an active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reservists with nonduty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. d. Paragraph 9-12 states Reserve component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Reserve component Soldiers with nonduty related medical conditions, MEBs are not required and cases are not sent through the PEBLOs (Physical Evaluation Board Liaison Officers) at the military treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USARC Regional Support Command or the U.S. Army Human Resources Command Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. 22. 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. 23. 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. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statement and the medical advisory opinion, the Board found insufficient evidence to grant relief. The Board agreed with the medical advisory opinion that the applicant met medical retention standards at the time of discharge from active service from 20030408 to 20060407. At the time of the applicant’s discharge from active service, his performance evaluation indicated that he was a highly physically and mentally functioning Soldier. The Board also agreed with the medical advisory opinion that the applicant did not meet medical retention standards at the time of discharge from the USAR on 26 January 2011, but that his unfitting medical conditions in the USAR were determined to be not in the line of duty. The Board noted that the applicant was fit for duty when he was discharged from active duty in 2006, then incurred injuries to his left side from a documented football accident while in college in 2007 and then complained of back pain as well. The Board found insufficient evidence that the applicant’s unfitting injuries at the time of his release from the USAR in 2011 were incurred during military service; evidence indicates that his unfitting medical conditions were due to the football accident. Therefore, the Board agreed that the applicant’s discharge was proper and fitting and there is insufficient evidence in the applicant’s medical and service records of a service-related medical disability or condition that would support a change in narrative reason to “physical disability retirement”: The VA properly provided him support and benefits for his medical concerns post-service. 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, 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. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40 with the following caveats: a. USAR or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 or discharged from the USAR per AR 135–175 (Separation of Officers) or Army Regulation 135–178 (Enlisted Administrative Separations). They will be transferred to the Retired Reserve only if eligible and if they apply for it. c. Reservists who do not meet medical retention standards may request continuance in an active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reservists with nonduty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. d. Paragraph 9-12 states Reserve component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Reserve component Soldiers with nonduty related medical conditions, MEBs are not required and cases are not sent through the PEBLOs (Physical Evaluation Board Liaison Officers) at the military treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USARC Regional Support Command or the U.S. Army Human Resources Command Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001799 8 1