IN THE CASE OF: BOARD DATE: 10 March 2020 DOCKET NUMBER: AR20170013408 APPLICANT REQUESTS: a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical documents * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Enlisted Record Brief (ERB) * 2 DA Forms 3349 (Physical Profile) * DA Form 137-1/2 (Unit Clearance Record) * Soldier Deployment History Out-processing Report * DD Form 2648 (Pre-Separation Counseling Checklist) * DA Form 4187 (Personnel Action) * Army Training Requirements and Resource System sheet * Orders * Letters to Congressman * Correspondence from Congressman * Memorandums FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 she should medically be retired due to hearing loss and she could not reenlist with a P3 profile. She started a military occupational specialty (MOS)/medical retention board (MRB)/medical evaluation board (MEB); however, because she was transferring from Fort Eustis, VA to Fort Bragg, NC at 7 months pregnant, her new chain of command did not give her the opportunity to pursue a MEB. 3. The applicant served in Iraq from 1 March 2004 to 31 August 2004, and in Afghanistan from 2 February 2008 through 27 April 2009. 4. On 19 August 2009, the applicant was issued a permanent P3 profile due to noise induced hearing loss. The profile stated she should not be exposed to any noise level above 85DB as this will further compromise her already poor hearing. 5. A permanent P3 hearing profile issued on 23 December 2009, states the applicant should have no exposure to noise in excess 85dBA without use of properly fitted hearing protection. Per MMRB 18 December 2009, the applicant was recommended for change of MOS. An Annual hearing evaluation was required. The applicant's MMRB proceedings are not available for review. 6. A Memorandum for Record (MFR), dated 14 March 2011, concerning the applicant's weapon's qualification, states in effect, the applicant should be allowed to use the engagement skills trainer (EST) 2000 computerized system for weapon's qualification because it does not represent a significant risk of further hearing damage. 7. An approved DA Form 4187, dated 8 June 2011, shows a 90-day deferment for reclass to MOS 42A (Human Resource Specialist) was granted due to the applicant being enrolled in the Army Weight Control Program. 8. A MFR, dated 19 November 2012, concerning the removal of a 9H code from the applicant's record states in part, the applicant is not in the IDES/MEB process. She completed a reclassification board on 2009 and has a post board profile record. It was requested the 9H code be removed in order for the applicant to be discharged. 9. A medical note dated 23 January 2013, signed by Dr. R_, states Established H-3 profile since 2009, with completed MMRB; recommend patient receive medical discharge because of significant hearing loss in both ears and impaired speech discrimination which affects her ability to understand speech even with hearing aids; however, on the same date, the applicant's Health Record shows Dr. R_ noted the applicant meets H-3 standard per Army Regulation 40-501 (Standards of Medical Fitness) with established profile and completed MMRB. It was further noted the applicant was given a copy of the profile. 10. On 14 February 2013, the applicant was honorably discharged in the rank of specialist under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4, for completion of required active service. 11. On 21 January 2020, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The advisory states, in part, the available records indicate the applicant met medical retention standards. Based on the available records submitted by the applicant, she was appropriately diagnosed with hearing loss and placed on a permanent H-3 profile. Further, she was appropriately evaluated by the MMRB and reclassified from an 88M to a 42A which significantly reduced her potential exposure to loud noises. Her profiles significantly limited her ability to participate in activities known to be over the threshold for hearing damage to include weapons ranges without proper hearing protection. Her case followed the medical regulations as dictated by the Army. The only area where a mistake occurred was within her records carrying a 9H code indicating she was in an MEB. Nowhere in her medical records is there an indication she was referred for an MEB and her records did in fact have an MFR written by a physician indicating she indeed was not in the MEB process and the 9H code should be stricken from her record. This was completed shortly after the memo was submitted. Lastly, Dr. R_, an Audiologist, indicated she was fit for duty based on medical regulations and the findings of the MMRB as long as she followed her profile restrictions. Based on the available records it is the opinion of the Agency Medical Advisor the applicant was discharged appropriately due to her expiration term of service (ETS) date. She was appropriately classified as Honorable upon discharge. Her records do not support a referral to an MEB as her concern of hearing loss was addressed during the appropriate MMRB and she was reclassified after the recommendation of retaining her. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. On 31 January 2020, in response to the advisory opinion, the applicant disagreed with the advisory and states, in part: a. After the Department of Defense reviewed her military documentation, the system would have shown during her MMRB hearing she was 6 months pregnant. Therefore, she couldn't attend the 42A reclassification courses due to her pregnancy. In her personnel records, the 9H code was placed on her military records at the same time of her MMRB results were entered. After giving birth to her son in 2010, the 9H code remained on her records from 2009 until she out processed. b. The MFR, submitted by major (MAJ) N, was done within 72 hours of her being processed out of so she could clear on time. Without that clearance from MAJ N, she couldn't do her final post out-processing in a timely manner. She didn't know MAJ N, nor had she ever had a conversation with her about the 9H code. Her chain of command must have contacted her to get this MFR done to cover them in their wrong doing. If this was an error, how would that code stay on her records for three years? How could everything miraculously become an error after her chain of command was contacted due to her congressional directed to her chain of command? c. There is no documentation stating she completed 42A training, nor did she receive a Certificate of Completion of the 42A course. Her reclassification to 42A, the 9H code and MMRB results were entered into the same system while she was pregnant with her son. There should be supporting documentation for everything done in the military; however, there is no documentation of her completing the 42A course, the 9H code being in error, or her not being eligible for a MEB. d. If there is documentation concerning her being flagged for being overweight, she would like to know where the information pertaining to her 2009 MMRB is and why could she not have completed the 42A course at that time. Dr. R_ recommended her for a MEB due to her P3 hearing profile to her and she does not understand how it could be untrue. 13. On 10 February 2020, the Army Review Boards Agency (ARBA) Special medical advisor provided a second advisory opinion. The advisory opinion stated, in part: a. The documentation supports the applicant was appropriately diagnosed with a bilateral high sensorineural hearing loss during her service on Active Duty in the Army. However, there is no baseline hearing study at the time the applicant entered the Army found in the documentation reviewed to indicate what her hearing status was at the time of entry. The applicant was issued a permanent H-3 profile, and was referred to a MMRB who found that the applicant met retention standards in accordance with Army Regulation 40-501, and also found that the applicant would require a change in her MOS to accommodate less noise exposure. b. The applicant was scheduled to attend training to change her MOS to 42A, but ultimately was not allowed to attend due to being flagged for not meeting the Army height/weight requirements. Although the applicant never attended the training for the MOS 42A, she was placed by her Command in a 42A position in the organization’s mail section with a duty title of Postal Specialist as required by the findings of the MMRB. There is no indication that the applicant met the criteria for a referral to the Disability Evaluation System (DES) in accordance with Army Regulation 40-501. c. In conclusion, the record supports the applicant was appropriately retained in the Army, and that she was provided with a change in her duty status to ensure that she would be in compliance with the permanent profile issued by the MMRB. Therefore, it is the opinion of the Agency Medical Advisor, based on the available information, that a referral to the DES for consideration of military medical retirement is not indicated at this time 14. On 11 February 2020, the applicant was provided a copy of the advisory opinion for rebuttal or comment. She did not respond. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 4, in effect at the time, provided, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training. This regulation also stated, in pertinent part, that medical examinations were required for members separated per paragraphs 5-3 or 16-4 and chapters 8, 9, 12, or 13. Medical examinations under any other provision of this regulation were not required, but could be requested by members in writing. A copy of the complete medical advisory was provided to the Board for their review and consideration. 16. 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 office, grade, rank, or rating. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, her record of service, a permanent (hearing) P3 profile, the determination she met medical retention standards and was recommended for reclassification by an MMRB, the 9H code indicating she was in an MEB and the reason for her separation. The Board considered two reviews by medical advising officials and the applicant’s response; the medical advising officials concluded that the applicant was not in the MEB process, that her condition (P3) met medical retention standards and that processing through the disability evaluation system was not warranted. The majority of Board members determined that there was sufficient evidence regarding the applicant’s condition to warrant further review; one member concurred with the advising officials and found the evidence insufficient to refer the applicant to the disability evaluation system. Based on a preponderance of evidence, the Board majority determined that the applicant should be afforded processing through the disability evaluation system. 2. After reviewing the application and all supporting documents, the Board majority found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :XXX :XXX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX : : 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 records of the individual concerned be corrected by referring her records to the Office of The Surgeon General for review: a. If a review by the Office of The Surgeon General determines the evidence supports further processing, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to her discharge. b. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her 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 separated or retired for disability, these proceedings serve as the authority to issue her the appropriate separation retroactive to her original separation date, with entitlement to all back pay and allowances and/or retired pay. 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, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 4, in effect at the time, provided, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training. This regulation also stated, in pertinent part, that medical examinations were required for members separated per paragraphs 5-3 or 16-4 and chapters 8, 9, 12, or 13. Medical examinations under any other provision of this regulation were not required, but could be requested by members in writing. 3. Army Regulation 635-40 establishes 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 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 separation for disability. a. The disability system assessment process involves two distinct stages: the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his or 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. 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. 4. Army Regulation 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 PEB rates all disabilities. The VA Schedule for Rating Disabilities is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013408 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1