ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 May 2019 DOCKET NUMBER: AR20170007813 APPLICANT REQUESTS: physical disability retirement in lieu of honorable discharge due to expiration term of service (ETS). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 31 March 2017 * self-authored statement * 137 pages of service medical records * DD Form 149, dated 16 May 2017 * Department of Veterans Affairs (VA) medical documents in excess of 1,100 pages 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. His records are incorrect because he should have been processed out of active duty service through a medical evaluation board (MEB) and ultimately medically retired due to the medical conditions he was diagnosed with while deployed to Iraq. He incurred these conditions, which would interfere with his ability to perform his duties as an airborne Infantryman while fighting for his life every day in Iraq and killing for our great nation. b. He injured his knee and lower leg in Iraq in 2007, as a result of falling off a wall after scaling it during a raid. He reinjured it during his deployment to Iraq in 2009. Pain and weakness caused multiple visits to sick call and prohibited him from running or carrying heavy gear. Multiple medical records show his diagnosis of shin splints and knee injury/pain while on active duty. a. c. After exiting the Army, he was advised that his leg had been broken and had healed incorrectly. He was also advised his tendon was torn, causing patella dislocations. He began physical therapy with no benefit and has had to have two reconstructive knee surgeries with Fulkerson osteotomy to correct alignment of his shin as well as tendon replacement with cadaver tendon, plates, and screws. His knee still has recurrent subluxation (partial dislocation) with the stretched replacement tendon and he is pending his third knee surgery. d. In November 2007 he sought mental health treatment due to waking up with his hands around his wife’s neck. He was having difficulties sleeping, anxiety, and anger issues. He was diagnosed with post-traumatic stress disorder (PTSD) at the time, while still on active duty. e. Due to having multiple traumas resulting from improvised explosive device (IED) blasts and injuries during airborne jumps, he incurred traumatic brain injury (TBI) and memory loss. He continues to have difficulty with memory and vision and was diagnosed with memory loss while on active duty. f. He has significant hearing loss in his left ear due to exposure to combat noises and pressure caused by IED blasts. He was tested and shown to have hearing loss in his left ear while on active duty. g. He was suffering with severe PTSD, anxiety, and depression along with having multiple admissions to inpatient mental health treatment facilities. He sought help through the VA system with multiple failed PTSD treatments which pushed him to seek treatment at private facilities, paying for out-of-pocket expenses. He also had two reconstructive knee surgeries. If he had Tricare, he would not have had to depend on the VA for his knee surgery and suffer irreversible nerve damage, rendering him incapable of growing leg muscle as a result of failed surgeries. He was unaware at the time of the MEB process and not mentally capable of the undertaking. 3. The applicant enlisted in the Regular Army on 23 September 2005, and was awarded the military occupational specialty 11B (Infantryman). 4. He deployed to Iraq on two occasions, from 1 August 2006 through 1 September 2007 and from 4 December 2008 through 4 December 2009. Among his earned badges, awards, and decorations are the Parachutist Badge, Army Commendation Medal (2nd Award), Iraq Campaign Medal with two campaign stars, and the Combat Infantryman Badge. 5. He provided a DD Form 2807-1 (Report of Medical History), dated 30 November 2009, which shows he underwent a physical exam on the date of the form for the purpose of separation. He annotated he can’t remember things he was just told, gets worried in crowds, can’t sleep through the night, was in an IED blast, fell of the top of an 1. MRAP; and hurt his knee falling over a wall while raiding a house in Iraq. He marked “yes” to having ever had or currently having the following: * dizziness or fainting spells * a head injury, memory loss, or amnesia * a period of unconsciousness or concussion * nervous trouble of any sort (anxiety or panic attacks) * loss of memory or amnesia, or neurological symptoms 6. He provided a DD Form 2808 (Report of Medical Examination), dated 30 November 2009, which shows: * he was qualified for service * his physical profile PULHES rating was “1,1,1,1,1,1” * he did not have any significant or disqualifying defects * the summary of his defects and diagnoses were leg pain, memory loss, and hyperlipidemia (high concentration of fats in the blood) * it was recommended he follow up with his primary care manager and he was given Army One Source information 7. He was honorably released from active duty at his ETS on 23 February 2010, due to the completion of required active service. He completed 4 years, 5 months, and 1 day of net active service, and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). He was honorably discharged from the USAR Control Group (Reinforcement) on 17 September 2013. 8. His available service records 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 9. On 24 May 2017, the Army Review Boards Agency (ARBA) psychiatrist provided an advisory opinion. The ARBA psychiatrist stated: a. On 29 April 2008, the applicant presented to Behavioral Health with complaints of poor sleep, irritability, increased anger, paranoia, increased startle response, hypervigilance, feelings of detachment, and combat related nightmares. He reported that he lost multiple friends and fellow Soldiers during his 2006-2007 deployment, where a. he was exposed to IED, rocket propelled grenade blasts, being sniped at, and being in constant battle. During this medical appointment, he was diagnosed with chronic PTSD and referred to both individual therapy and anger management classes. b. On 24 February 2009, the applicant’s case was closed by Mental Health due to a lack of patient follow up, after several attempts at contact. On 9 December 2009, his primary care provider prescribed him Ambien for his sleep issues. ON 11 December 2009, he presented to Behavioral Health with complaints of poor sleep, hypervigilance and increased anger. He reported his second deployment was much less stressful than his first deployment due to the slower pace. He stated he had an appointment with the TBI clinic, “but was turned away.” He was diagnosed with acute reaction to stress. On 25 December 2009, a psychiatric referral for depression vice adjustment disorder that had been entered into the referral system was closed out due to the applicant not following through and making an appointment. c. The ARBA psychiatrist concluded there is no indication in the applicant’s military medical record that he failed to meet military retention standards in accordance with Army Regulation 40-501. A review of the VA medical records indicates he has a service-connected rating of 100 percent for PTSD and 50 percent for migraine headaches. Although his military medical record clearly diagnoses him with combat related PTSD, this diagnosis did not result in recurrent hospitalization, duty limiting physical profiles, or significant interference in military functioning and there is sparse documentation regarding the applicant’s reported TBI symptoms. Based on the available information, referral of the applicant’s record for consideration of military medical disability retirement is not warranted. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 10. On 30 May 2017, the ARBA senior medical advisor also provided an advisory opinion. The ARBA senior medical advisor concluded: a. The applicant met medical retention standards for PTSD, history of TBI with loss of consciousness, sleep problems/insomnia, history of memory loss/headaches/dizziness, back pain, left knee pain, left shoulder pain, heartburn, hemorrhoids, history of shin splints, history of foot pain, left sided hearing loss, elevated cholesterol, allergic rhinitis, toenail fungus, a history of acute bronchitis, and existed prior to service vision problems. b. He clearly met retention standards and was medically eligible for reenlistment and continued military service at the time of his ETS separation from the Army. 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. A copy of the complete medical advisory was provided to the Board for their review and consideration. a. 11. The applicant was provided a copy of both medical advisory opinions on 30 May 2017 and given an opportunity to submit comments, but he did not respond. 12. 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. 14. 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. (1) (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. 15. 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. 16. 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 reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory’s finding that 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 show that there was an error or injustice which warranted a change in the narrative reason for separation. For that reason, the Board recommended denying the applicant’s request for 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. 5/13/2019 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. 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 (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 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. a. 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. 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. 5. 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.