IN THE CASE OF: BOARD DATE: 27 January 2020 DOCKET NUMBER: AR20170003133 APPLICANT REQUESTS: Correction of his records to show he was retired due to physical disability. 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) for the period 19 May 2011 to 20 May 2012 * Department of Veterans Affairs (VA) service connected disability compensation decision letter, dated 4 December 2012 * VA service connected disability compensation verification letter, dated 21 June 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 was in the Warrior Transition Unit (WTU) at Fort Bragg, NC. He was so overwhelmed and under duress after returning from Afghanistan and after sustaining a traumatic brain injury and post-traumatic stress disorder that he could not stand up for himself nor be around others that did not want to help him through his process. b. After he was given an ultimatum, he felt betrayed, let down, and that he was being unjustly treated. When he found out that he should have been retired, it was too late and he was out. He was given an ultimatum and forced out under duress. He was 80 percent disabled even before getting out and he was informed that he should have been retired. He was at the WTU before getting out and he should not have been let go before being medically cleared due to his injuries. 3. The applicant enlisted in the Army National Guard (ARNG) on 19 May 2006. He entered active duty in support of Operation Enduring Freedom on 19 May 2011 and he served in Afghanistan from 24 June 2011 to 2 February 2012. 4. The applicant's DD Form 214 shows he was released from active duty on 20 May 2012 and transferred to his ARNG unit in Oklahoma. His DD Form 214 also shows he received an extension on active duty for the purpose of participating in the Reserve Component’s warriors in transition medical retention processing program for completion of medical evaluation. 5. On 25 June 2012, the applicant was transferred to the North Carolina ARNG (NCARNG). 6. The applicant's Personnel Qualification Record, prepared on 26 June 2012, shows in Section J (Physical Data) a physical profile serial system code of "111111." 7. Orders issued by the NCARNG on 22 May 2013, directed the applicant's discharge from the ARNG and his transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his statutory or contractual military service obligation. 8. The applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was discharged from the ARNG and transferred to the USAR Control Group (Reinforcement) on 18 May 2013 by reason of expiration of active status commitment in the Selected Reserve. The NGB Form 22 also shows he was assigned a reentry (RE) code of "1." 9. There is no evidence in the applicant's available records showing he was unable to perform his military duties due to a medical disability. 10. The applicant provided documentation from the VA confirming he was granted service connected disability compensation for a number of medical conditions. 11. On 30 December 2019, the Army Review Boards Agency psychologist/medical advisor provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. There is no available evidence supporting a change to his narrative reason for separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. The applicant was provided a copy of the advisory opinion on 6 January 2020 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and a medical advisory opinion. The Board noted that the medical advisor found no documentation indicating the applicant did not meet retention standards prior to his discharge from the ARNG or prior to his release from active duty in 2012. The Board further noted, however, that prior to his discharge from the ARNG he had received a 70 percent disability rating from the VA. The Board determined that, in the interest of resolving any doubt with regard to his physical fitness to continue military service, it would be appropriate for the Office of The Surgeon General to review his record to determine if he should have been referred to the Disability Evaluation System and affording him processing through that system if warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : x x x GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by referring his records to the Office of The Surgeon General for review to determine if the applicant should have been referred to the Disability Evaluation System (DES). a. If a review by the Office of The Surgeon General determines the evidence supports referral to the DES, the individual concerned will be afforded due process for consideration of any additional diagnoses identified as having not met retention standards prior to his discharge. b. In the event that a formal Physical Evaluation Board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be retired for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief without benefit of the review described above. 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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 3. Army Regulation 40-501, chapter 7 (Physical Profiling) of the regulation in effect at the time of the applicant's separation, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. 4. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. 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 service. 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 inforce, 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 4-10 provides that Medical Evaluation Boards (MEB) are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in Army Regulation 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a Physical Evaluation Board (PEB). e. Paragraph 4-12 provides that each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. 5. Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program) covers eligibility criteria for enlistment and processing into the Regular Army, USAR, and ARNG. This regulation provides that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. RE-1 applies to persons completing their term of service who are considered qualified to reenter the Army, so long as all other qualifications are met. 6. 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 and 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 7. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a 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 Army disability rating is to compensate the individual for the loss of a military career. The VA does not have 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. 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) AR20170003133 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1