ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 December 2019 DOCKET NUMBER: AR20170002747 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired instead of medical disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant states he was discharged from the Army through medical evaluation board (MEB). At the end of service, he had a total of 18 years of active duty service time. He did not receive retirement through the MEB process. He was discharged with a severance pay. However, he attempted twice to appeal the decision. Both attempts failed, now he is writing as this is next to his last option to appeal the discharge type and change it to retirement as he is requesting. He has a total of 4 deployments to Afghanistan and Iraq. He and his family have made numerous sacrifices and dedication to the service. To complete 18 years with nothing to show for the service he committed to is unjust. He must provide for his family, to include six children. 2. A review of the applicant’s service records shows: a. On 18 March 1999, he enlisted in the Regular Army. b. The complete fact and circumstances surrounding his discharge are not available for review with this case. However, the record contains a DD Form 214 that shows he was discharged on 24 November 2016 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) chapter 4, due to disability with entitlement to severance pay (combat related). He completed 17 years, 8 months and 7 days of active service. c. On 4 December 2016, the Department of Veterans Affairs (VA) made a decision on his claim for a service connected compensation, which was received on 29 February 2016. The VA determined that the following conditions were related to his military service: * Unspecified anxiety disorder (claimed as anxiety and sleep disturbances) 30% * Lumbar spine degenerative disc disease (14-15, 15-sl), bilateral neuroforaminal narrowing (14-15) and mild canal stenosis (14-15, 15-s 1) (claimed as low back pain) 20% * Right plantar fasciitis 20% * 11 other conditions with 0%, post-traumatic stress disorder (PTSD) was not one of the conditions 3. On 5 November 2019, the Army Physical Disability Agency (PDA) Legal Advisor rendered an advisory opinion in the processing of this case. He opined: a. The applicant states he attempted to appeal his disposition of separation with severance pay, with combat zone indicated, to no avail. Although he states that he does not know of any particular error in his case, he believes his separation with severance pay is an injustice to his 18 years of active service. b. The claimant postulates his anxiety disorder was unfitting. On 12 August 2016, a Formal Physical Evaluation Board (PEB) convened to allow the applicant, along with his legal representative, to present evidence in-person to support his claim. The PEB upheld the original disposition citing that he had no temporary or permanent profile for the anxiety condition. Moreover, the Commander's statement, which noted his anxiety disorder, indicated that he can perform his military occupational specialty (MOS) duties and was recommended for retention. Based upon the preponderance of the evidence the PEB sustained the informal PEB's decision that his anxiety disorder was a fit condition. On 24 August 2016, he concurred with the findings of the PEB and waived his right for a one-time only VA Ratings Reconsideration (VARR). It does not appear from United States Army Physical Disability Agency (USAPDA) records that he filed a request to continue on active duty (COAD) so that he could complete his 20 years to retire. c. The USAPDA recommends no change to his disability separation determination. The PEB findings were supported by a preponderance of evidence, were not arbitrary nor capricious, and were not in violation of any statute, directive or regulation. Due to the above, we find his request to be legally insufficient. 4. On 27 April 2017, the advisory opinion was forwarded to the applicant for acknowledgement and response. 5. The applicant responded, stating that he disagrees with the medical advisory opinion findings. The VA identified his symptoms to be more severe PTSD. The PEB did not allow him to remain on active duty to complete the remaining 2 years to get to 20 active duty years. As for not having a temporary profile is due to error of the physician, he told his Physical Evaluation Board Liaison Officer (PEBLO) that everything was being rushed with his MEB process. He felt he wasn’t able to resolve everything and have his medical records updated. It’s not normal for a career Soldier to plan for a MEB when the goal is to reach 20-year active service for retirement. Therefore, he would have made sure all medical documents were uploaded and accurate. Before leaving the Army, he felt everything was rushed. He was told the day after his separation to file a claim for everything missed through the MEB process. He was rated at a 100% disability with 50% for PTSD. He has deployed 4 times, although his record may indicate only 3 times. He has sacrificed as much as any Soldier have, only to be separated with 18 years and 3 days with a medical separation. He states that it is...“Just a [crappy] invalid DD Form 214 for 18 years of service and a middle finger to him. WOW! If the shoe were on the other foot, I’m sure each and every one of you would feel disrespected to not receive medical retirement. Whoever made this decision that took 2 years to complete, his hope is you get bad luck and nothing good happens for you all of 2020. Idiots!” 6. By regulation, 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant contentions were carefully considered. The Board concurred with the medical advisory opinion. The Board notes that although the applicant was later awarded a 100% percent disability rating from the VA., with 50% for PTSD, it is not a basis upon which to conclude that he should have been medically retired. The VA does not determine medical fitness for further military service. The VA 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. Consequently, the applicant's medical conditions, although not considered medically unfitting for military service at the time of processing for discharge, qualify him for VA benefits based on an evaluation by that agency. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of discharge for at least 30% before a member may be medically retired. Furthermore, the Board found no evidence that the applicant requested COAD prior to his discharge, requesting to remain on active duty to complete his 20 years of service. The Board agreed that there was insufficient evidence to warrant relief in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XXX :XXX 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. REFERENCES: 1. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for retention and separation, including retirement. Chapter 3 of the regulation gives the various medical conditions and physical defects which may render a Soldier unfit for further military service. 2. Army Regulation 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 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. 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. e. 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. f. 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. 3. Title 38, U.S. Code, 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. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002747 4 1