ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 July 2019 DOCKET NUMBER: AR20170002989 APPLICANT REQUESTS: a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2173 (Statement of Medical Examination and Duty Status) * DA Form 3349 (Physical Profile) 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, he should have been medically retired. He was discharged with a 10% rating and accepted a severance package. After being made aware of the Sabo class action lawsuit, he believes that his discharge was incorrect and believes he should have his discharged reviewed to possibly overturn the decision of medical separation. 3. The applicant provides: a. DA Form 2173, dated 24 September 1998, which states the applicant got hurt playing volleyball for unit physical fitness training and injured his right knee. b. DA Form 3349, dated 22 October 1998, which states the applicant suffered right knee instability and was profiled with a permanent L3. 4. A review of his service records shows: a. He enlisted on 6 August 1986 in to the Regular Army (RA). b. He was discharged on 3 August 1989 for immediate reenlistment. He reenlisted in to the RA on 4 August 1989. c. On 3 December 1994, the applicant was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 4 (Completion of Required Active Service), with an honorable characterization of service. He had 3 years, 3 months and 28 days of active service. d. He enlisted on 17 November 1994 in to the United States Army Reserves (USAR). e. A DD Form 214 shows he served a period of active duty from 21 March 1997 through 10 April 1999. f. His DA Form 3947 (Medical Evaluation Board Proceedings), dated 11 January 1999, reflect that they referred their findings to a Physical Evaluation Board (PEB) for: * Status-post right ACL reconstruction * Status-post excision of osteoid osteoma right femur shaft with iliac crest bone grafting. * Degenerative Joint Disease Right Knee g. His DA Form 199 (Physical Evaluation Board Proceedings), dated 28 January 1999, reflect that he received a 10% recommended disability percentage for right knee pain status post ACL reconstruction. The board found him unfit and recommended separation with severance pay. h. The applicant, in writing, acknowledged he was counseled about the MEB/PEB proceedings, the review process and concurred with the findings on 3 February 1999. He waived a formal hearing of his case. i. On 10 April 1999, the applicant was discharged under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) (Separation for physical disability with severance pay), with an honorable characterization of service. He had 2 years and 20 days of active service. It also shows on his DD Form 214: * item 23 (Type of Separation), Discharge * item 24 (Character of Service), Honorable * item 25 (Separation Authority), AR 635-35, Paragraph 4-24b(3) * item 26 (Separation Code), JFL (Disability, Severance Pay) * item 27 (Reenlistment Code), 3 * Item 28 (Narrative Reason for Separation), Disability, Severance Pay 5. On 23 April 2019, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion and opined: a. The applicant’s available record did not reasonably support post-traumatic stress disorder (PTSD) or another boardable behavioral health condition. b. The applicant did not meet medical retention standards for Status post right ACL reconstruction and Status post excision of osteoid osteoma right femur shaft with iliac crest bone grafting in accordance with (IAW) Chapter 3, AR 40-501 (Standards of Fitness), and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. c. The applicant met medical retention standards for degenerative joint disease right knee, right hand/wrist condition, right ankle, neck/cervical condition, and other physical, medical, dental and/or behavioral conditions IAW Chapter 3, AR 40-501 , and following the provisions set forth in AR 635-40 that were applicable to the applicant's era of service. d. The applicant's medical conditions were duly considered during medical separation processing. e. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character, reason, rated condition(s), disability determination(s), disability rating(s), and/or combat relatedness for the discharge in this case. f. After comprehensive review of the medical and other records, the ARBA Medical Advisor concludes that there is insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability rating(s) recommended. g. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. Congress grants that role and authority to the Department of Veterans Affairs, operating under a different set of laws. 6. On 29 April 2019, the applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He responded with a new mailing address, and stated he had no more comments. 7. 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 at less than 30 percent. 8. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. He was separated with severance pay for physical disability(s) and requests an increase in his disability percentage. The medical advisory official duly considered his request and performed a comprehensive review of his medical records. The advisory official determined there is insufficient evidence that shows he should receive a higher percentage than what was provided through the PEB. Based upon the preponderance of evidence, the Board determined there was no error or injustice in this case and denied relief. 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. 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, 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 at less than 30 percent. 3. 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, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * 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 * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees. 4. Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. 5. AR 635-40 (Physical Evaluation for Retention, Retirement or Separation), establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC). It 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 or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. 6. AR 40-501 (Medical Services – Standards of Medical Fitness) governs regulation governs Medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, Medical fitness standards for retention and separation, including retirement, Medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments. It also governs Medical standards and policies for aviation, Physical profiles, and Medical examinations. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002989 5 1