ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 May 2019 DOCKET NUMBER: AR20170002249 APPLICANT REQUESTS: * His honorable discharge be changed to a medical retirement * Personal Appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Email to lawyer (undated) * Letter from Dr. X____, dated 6 September 2013 * Letter from Department of Veterans Affairs (VA) (decision regarding entitlement), dated 23 January 2017 * Letter from VA (receiving service connected disability compensation, dated 25 January 2017 * Signature page, dated 26 January 2017 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 had a foot reconstruction surgery on April of 2013. The recovery period for his surgery was to be approximately one year. Since he was technically still in his recovery period from his surgery, his surgeon refused to issue a permanent P3 profile. Since he was not able to get issued a P3 profile, he was not able to get an extension of his expiration term of service (ETS). He has attached a letter from his podiatrist that recommends a permanent profile and Medical Evaluation Board (MEB). His ETS date was in November of 2013. Due to the circumstances revolving around his foot reconstruction surgery, he was not able to enter the MEB/Physical Evaluation Board (PEB) process at the time of discharge. At the time, he also did not understand the a. nature of his post-traumatic stress disorder (PTSD). He believes the infantry mentality that is still a big part of him, aided in the denial of his issues. b. It did not occur to him to seek psychological help because he believed that it could be viewed as weakness. At the time, the most pressing medical issue in his mind was his feet, so he had tunnel vision to enter the MEB/PEB process with that. He has recently completed his claim with the VA and received a combined rating of 80%. This rating includes 30% for his feet conditions, 20% for a shoulder condition, and 70% for a PTSD condition. He believes he should be eligible for a retroactive medical retirement due to these circumstances. He had initially engaged a lawyer prior to his discharge to work on getting into the MEB/PEB process. He was unsuccessful in completing that process prior to his discharge. c. Since he was discharged abruptly, he had to find a means to make a living and he was not able to allocate funds to further the case with his lawyer. He had copies of letters and documents that his lawyer sent to people in the applicant’s command in his email, but due a bad migration of that email mailbox, he lost emails from that period in time. He has attempted to reengage his lawyer on multiple occasions since his discharge, but the lawyer seems to be unresponsive. He has decided to move forward with this claim on his own since the lawyer is unresponsive. He felt that having the VA decision would be beneficial to this case, so he began his research on this process as soon as he received the VA decision. 3. The applicant provides: * An undated email to a lawyer attempting reengagement on getting a medical retirement at the end of 2013 * A letter from Dr. X , dated 6 September 2013, recommending the applicant receive a permanent profile due to his medical condition * A letter from VA, dated 23 January 2017, regarding his VA benefits on the following decision: Scars left foot/ankle – 0%; Left knee strain – 0%; Right knee strain – 0%; PTSD – 70%; Bilateral pes planus status post left foot surgery – 30%; and Left shoulder strain – 20% * A letter from VA, dated 25 January 2017, stating the applicant is receiving service connected disability compensation from the DVA 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 25 March 2005. b. He reenlisted with no breaks in service on 10 August 2007 for four years and 1 October 2009 for four years. c. He signed a declination of continued service statement on 26 March 2013 as a result of assignment to Fort Sill, OK. a. d. He extended his reenlistment for two months on 23 July 2013 until 30 November 2013 under provisions (UP) of chapter 4-9a (Meeting Service Remaining Requirement(s)), Army Regulation (AR) 601-280 (Army Retention Program). e. Orders 221-0010, dated 9 August 2013, reassigned the applicant to report on 28 November 2013 to the U.S. Army Transition Point for discharge on 30 November 2013. f. Orders 302-0013, dated 29 October 2013, amended order 221-0010, to read reporting date 12 November 2013 with an available date of 14 November 2013. g. On 11 November 2013, he was honorably discharged under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations) chapter 4 (Separation for Expiration of Service Obligation) and issued a DD Form 214 (Certificate of Release or Discharge from Active Duty). h. On 20 November 2013, a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) was issued to correct this applicant’s separation date in block 12b (Separation Date This Period) to read 2013/11/30 and block 12c (Net Active Service This Period) to read 8 years, 8 months, and 25 days. 5. On 19 May 2017, Case Management Division (CMD) notified the applicant that he must provide a copy of the medical documents that support his issue of PTSD. He was given until 18 August 2017 to respond. The applicant did not respond. 6. On 28 August 2017, CMD requested a medical review of the applicant’s alleged medical condition(s) to ascertain if condition(s) warranted separation through medical channels. 7. On 4 October 2017, the ARBA senior medical advisor rendered an advisory opinion in the applicant’s case. The advisor stated: a. Does the available record reasonably support PTSD or another boardable behavioral health condition(s) existed at the time of the applicant's military service? No. Sleep disturbance and primary snoring. Personal history of mild TBI with subjective report of memory problems or lapses not validated on neuropsychological testing. b. Did this condition(s) fail medical retention standards IAW (in accordance with) AR 40-501 (Standards of Medical Fitness), warranting a separation through medical channels? No, not applicable. c. The applicant met medical retention standards for history of left foot surgery (and tendonitis posterior tibial), history of LTBI (treated), sleep disturbance & primary a. snoring, decreased hearing acuity on right, history of urethral infection, history of minor heat exhaustion, history of left shoulder pain, history of skin fungal infection (tinea versicolor), history of left ring finger mallet finger, history of paronychia right middle finger, history of shin splints (right greater than left; negative x-rays), personal history of mild TBI (traumatic brain injury), EPTS (existed prior to service) congenital foot deformity – pes planus moderate bilateral, and other physical, medical and/or behavioral conditions IAW Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), AR 40-501 , 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. d. Reviewer note: Left foot surgery 8 Apr 2013; did not reach Medical Retention Determination Point before original ETS date (October 2013) nor extended (30 November 2013) ETS date. Rehabilitation for this type of foot surgery typically takes -12 months (i.e. through April 2014) during which time the patient is maintained on a temporary physical profile. Issuing a permanent 3 profile for referral to a MEB would be inappropriate in this case (as 'recommended' on 6 September 2013) as there was no evidence of surgical complications or rehabilitation failure at that time (only 5 months post-op) or at the time of separation. e. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. There was no clinical indication for medical evaluation board process or military medical retirement in this case. 8. On 5 October 2013, the applicant was provided with a copy of this advisory opinion to give him an opportunity (30 days) to submit a response and/or a rebuttal. He did not respond. 9. By regulation, applicants do not have a right to a hearing before the Board. The Director or the ABCMR may grant a formal hearing whenever justice requires. 10. By regulation (AR 635-40), 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. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. 1. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. Based upon the medical advisory’s finding that it found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge, the Board concluded there was insufficient evidence to change the reason for separation to a medical retirement. 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. 5/28/2019 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. 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. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the Physical Evaluation Board (PEB) rates all disabilities using the Veteran's Administration Schedule for Rating Disabilities (VASRD). Department of Defense Instruction (DODI) 1332.39, and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), appendix B (Army Application of the Veterans Administration Schedule for Rating Disabilities), modify those provisions of the rating schedule inapplicable to the military and clarify rating guidance for specific conditions. Ratings can range from 0 to 100 percent, rising in increments of 10 percent. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth the policies for the disposition of Soldiers found unfit because of physical disability to reasonably perform the duties of his/her office, grade, rank, or rating. a. Paragraph 3-1 states that 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. The Soldier will not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier's acceptance for military a. service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. b. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of a 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 service. c. Paragraph 4-17 states PEB's are established to evaluate all cases of physical disability equitability for the Soldier and the Army. It is a fact-finding board to investigate the nature, cause, degree of severity, and probable permanency of the disability of Soldiers who are referred to the board; to evaluate the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating; to provide a full and fair hearing for the Soldier; and to make findings and recommendations to establish eligibility of a Soldier to be separated or retired because of physical disability. d. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. The VA can evaluate a veteran throughout their lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. e. Appendix B, paragraph f of that regulations states conditions which do not render a Soldier unfit for military service will not be considered in determining the compensable disability rating unless they contribute to the finding of unfitness..