ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 April 2019 DOCKET NUMBER: AR20170014492 APPLICANT REQUESTS: Reconsideration of his earlier request for a medical retirement. 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), dated 13 January 2007 * Department of Veterans Affairs (VA) documents FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080011390 on 7 October 2008. 2. He states he would like to have a medical board review because he was diagnosed with post-traumatic stress Disorder (PTSD) and traumatic brain injury (TBI) following his discharge. He was also injured while on active duty during a deployment. He was granted a discharge with an involuntary separation pay instead of having a medical evaluation board or physical evaluation board. He was granted a VA disability rating of 60% immediately following his discharge but it was increased to 70% within the first 8 months. He currently has a 100% rating for PTSD and TBI. 3. The applicant provides: * VA rating decision, dated 25 July 1997 which grants him the rating of 10% for traumatic arthritis of lumbar spine, bilateral knees, and metatarsophalangeal joint evaluated for the period of 1986 to 1997 * VA rating decision dated, 8 May 2008 which grants him the combined rating of 50% effective 14 January 2007, and 70% effective 28 September 2007 for his service connected PTSD * VA claim letter, withholding his VA compensation benefits until his separation pay in the amount of $32,214.00 was paid back * Decision review officer decision dated, 12 November 2008 which granted him 10% for his right thigh injury * VA rating decision dated, 17 January 2013 summarizes of all his medical conditions and designates an individual percentages for each condition * VA decision claim letter dated, 18 January 2013 increasing his monthly entitlement for including his 2 dependents * VA rating decision for previous traumatic brain injury claim was denied on 4 August 2014. 4. A review of his service records shows: a. He enlisted in the Regular Army (RA) on 7 October 1986. b. He served in Southwest Asia from 16 December 1990 to 5 May 1991. c. The applicant had a break in service and enlisted in the Regular Army on 14 September 2000 for 3 years. He continued to serve in Kuwait and Iraq from 26 February 2003 to 13 December 2003 and in Afghanistan from 21 March 2005 to 20 March 2006. 5. The applicant reenlisted to serve in the U.S. Army Reserve as listed on his DD Form 4-1, on 29 September 2006, for 6 years. 6. The applicant was discharged from active duty on 13 January 2007 under the provisions of Army Regulation 635-200, chapter 4 for completion of required active service. He completed 6 years and 4 months of active military service during this period and 14 years, 2 months, and 13 days total active military service. 7. There are no medical documents available in his personnel electronic records. 8. In the processing of this case, the Army Review Boards Agency medical advisor/ psychologist reviewed the applicant's case and rendered an advisory opinion on 16 October 2017. He opined: a. The applicant's medical conditions were duly considered during medical separation processing. The applicant clearly met medical retention standards for history of closed head injury/mild TBI (traumatic brain injury), headache, visual acuity/presbyopia/myopia, history of neck pain, history of back pain, history of knee pain, for history of left thigh injury (status post-surgery, abscess, and physical therapy), history of ankle and/or foot pain, pes planus moderate bilateral, history of hematuria (blood in urine), dyslipidemia, and other physical, medical and/or behavioral conditions in accordance with 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. b. 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 Medical Evaluation Board processing was not and is not indicated in this applicant's case for behavioral health issues and traumatic brain claims. c. If the official paper service treatment records become available in the near future from the VA or elsewhere, the medical advisor will review and amend opinion. 9. The applicant was provided with a copy of this advisory opinion for review and an opportunity to submit a rebuttal, but he did not respond. 10. By regulation (AR 635-40), 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. 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. 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: 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; and 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. 11. 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. 12. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the medical advisory, the Board determined that relief was not warranted. One outcome discussed was to grant the applicant’s request based upon the post-service diagnosis of PTSD. However, based upon the medical advisory’s finding that no evidence of a medical disability or condition was present which would support a change to the characterization or reason for discharge, the Board concluded that reason for discharge currently depicted was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X: : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : 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. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement or Separation) establishes the Army Disability Evaluation System (DES) 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. It states that 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. 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, and separation including retirement. Once a determination of physical unfitness is made, the Physical Evaluation Board rates all disabilities using the Veterans Affairs Schedule for Rating Disabilities. 4. 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. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 5. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. ABCMR Record of Proceedings (cont) AR20170014492 4 1