BOARD DATE: 24 July 2020 DOCKET NUMBER: AR20170015012 APPLICANT REQUESTS: reconsideration of his prior request for physical disability retirement in lieu of physical disability discharge with severance pay APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * letter from Member of Congress, dated 2 October 2017 * self-authored statement, dated 22 September 2017 * Privacy Act Release, dated 22 September 2017 * DD Form 149 (Application for Correction of Military Record), dated 7 February 2008 * numerous documents provided in support of his February 2008 application, including email correspondence, multiple letters of support, and a Polysomnography Report dated 26 September 2008 * Army Board for Correction of Military Records (ABCMR) letter, dated 29 December 2008 * DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the U.S., dated 14 January 2009 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 AR20070009731 on 24 January 2008. 2. The applicant’s Member of Congress states: a. The applicant requests reconsideration of his prior appeal for an increased physical disability rating based on his condition of sleep apnea, which was not previously considered disabling because the Army failed to consider this condition. b. The applicant also believes his appeal was not given a fair review due to the fact that the law that created the PDBR does not provide specific guidance on how to properly appeal. As the Army did not report his sleep apnea condition, the PDBR was unable to offer him a new disability rating for any new conditions not previously reported. 3. The applicant states: a. He twice served on active duty in the Regular Army. During his first tour from 15 August 1989 through 22 April 1993, he was deployed in support of Operations Desert Shield/Desert Storm. At the time of his honorable discharge in 1993, he had difficulty performing his duties as a Soldier because he started suffering from severe headaches, body aches, and fatigue, so he was discharged a little more than 3 months before the end of his contract and had to wait over 3 years to reenlist. b. At that time, the Army considered his family problems, which were significant, were the only reason for his sudden inability to cope with military life. Between 1993 and 2005, he had divorced and remarried, as well as improved his financial situation, so he attempted to recover his military career by returning to active duty by enlisting on 16 May 2005. He once again received an honorable discharge before the end of his enlistment contract, this time receiving medical severance on 21 May 2007. c. During his last enlistment in 2006 he was diagnosed with “medically undiagnosed physical symptoms” consistent with deployment to the Middle East. Later, he would be diagnosed with moderate to severe sleep apnea, which effectively made it impossible for him to participate in field training or deployment, thus abruptly ending his career. He received several diagnoses at that time, but nonetheless tried to convince the Army to retain him as he had just been selected by the Warrant Officer Corps for a promotion to Warrant Officer One in the field of Computer Information Systems. Joining the Warrant Officer Corps requires strenuous training at Fort Rucker, AL, something he would have been unable to accomplish without effective medical treatment to overcome his disabilities. d. It was then determined by the Army medical establishment that there were no cures for his disabilities so he was sent to the Medical Evaluation Board (MEB) where he initially tried to convince officials that he could still be an asset to the Army even with his health issues. He later changed his mind and decided to leave military service rather than risk further injury, but by that time the MEB ruled that sleep apnea would not interfere with his duties as a Warrant Officer and he should instead be separated with a 10 percent disability rating for degenerative disc disease. His immediate supervisors told him that sleep apnea was more serious than degenerative disc disease and that he would no longer be able to perform the normal duties of a Soldier. e. After receiving severance pay and an honorable medical discharge for his back, he immediately appealed to the Army Review Boards Agency (ARBA) to increase the disability ratings for all of is health issues, including sleep apnea, for which he should have received a rating of 40 percent. Soldiers separated from military service with ratings greater than 30 percent are eligible to receive a medical retirement pension, not just a one-time severance payment. Retirement also provides for Tricare medical insurance for the veteran and dependents. f. The ABCMR replied that he did not have sleep apnea as a disability so he would be unable to increase his rating. He would have to prove that he had received a diagnosis of sleep apnea while on active duty and received a disability rating of at least 0 percent. The only disability approved by the Army Physical Disability Agency (APDA) was degenerative disc disease. He sent a new appeal, not to increase the disability rating for sleep apnea, but to have sleep apnea listed in his records as a service-connected disability. He receive a letter from the ABCMR in early January 2009, dated 29 December 2008, stating his appeal was returned without prejudice and without action due to a new Public Law 110-181 that gave responsibility for rating military disabilities of all military branches to the Department of the Air Force. The letter stated that at that time, the Board was not yet functional, but that he should send his appeal to Randolph Air Force Base. g. He assembled his medical records and prepared to send them to the Air Force to the PDBR when he was informed during a phone call with them that since the Army failed to report disabilities other than degenerative disc disease, the PDBR would be unable to offer new ratings for disabilities he didn’t have. He would have to appeal to the APDA for confirmation that he did have sleep apnea and other disabilities prior to further appealing the percentage through the PDBR hosted by the Air Force. He immediately faxed all his medical records to the APDA at Walter Reed Army Medical Center and awaited a response. h. As he waited to hear from ARBA, he started getting angry with Congress for suddenly interfering with how the branches of the military handle disability claims, so he sought the advice and assistance from his Congressional District Office, then under the leadership of Representative Reyes. He explained how he felt that Congress may have undermined his appeal for Army disabilities. A Congressional Aide in the office helped him apply for additional benefits from the Department of Veterans Affairs (VA) and maintained communication with the Department of the Army. He then received a response from the APDA that his appeal was denied due to the expiration of a 2-year statute for making appeals after separation from service. ARBA was not able to review his case until after 21 May 2009, so he had run out of time. i. A few months ago, he reached out to his Member of Congress again to find out what work was pending on his behalf only to find out that all the records of constituents were lost during the transition of Congressional leadership and he would have to reapply for assistance, which did not make him happy. He blames Congress for creating a new PDBR hosted by the Air Force without clear guidance on how it should be instituted or maintained. Officials at both the Army and the Air Force were made unsure of their responsibilities and authority during the transition which delayed his review of appeals and ultimately resulted in him running out of time. Then the local Congressional District loses all of his information after passing a law that undermined his appeal for the benefits he deserves. Congress caused these problems for him and should fix them for him. 4. The applicant initially enlisted in the Regular Army on 15 August 1989. 5. A DA Form 4126-R (Bar to Reenlistment Certificate), dated 22 July 1992, shows the applicant received a local bar to reenlistment, based on multiple records of non-payment of just debts and other indicators of unattainability or unsuitability for which he received counseling on seven occasions. He did not submit statements in his own behalf or appeal the bar to reenlistment. 6. A Standard Form 88 (Report of Medical Examination), dated 16 March 1993, shows the applicant underwent physical examination on the date of the form for the purpose of pending separation. The clinical evaluation did not note any abnormalities and he was found fully qualified for service with a physical profile rating of “1” in all categories. 7. A DA Form 4187 (Personnel Action), dated 23 March 1993, shows the applicant requested voluntary discharge prior to his expiration of term of service under the provisions of Army Regulation 635-200, chapter 16, due to being unable to overcome a locally imposed bar to reenlistment. 8. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty accordingly on 22 April 1993 due to a locally imposed bar to reenlistment after 3 years, 8 months, and 8 days of net active service. It shows he was awarded or authorized the Kuwait Liberation Medal, National Defense Service Medal, and Southwest Asia Service Medal with 2 bronze service stars. 9. The applicant again enlisted in the Regular Army 12 years later on 16 May 2005. 10. The applicant’s DA Form 3349 (Physical Profile), DA Form 7652 (Disability Evaluation System (DES) Commander’s Performance and Functional Statement), Medical Evaluation Board (MEB) Narrative Summary (NARSUM), DA Form 3947 (MEB Proceedings), DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), DA Form 199-1 (Formal PEB Proceedings), VA Compensation and Pension (C&P) Exam, VA Rating Decision or any other MEB or Physical Evaluation Board (PEB) supporting documentation are not in his available records for review and have not been provided by the applicant. 11. Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss Orders 127-0005, dated 7 May 2007, honorably released him from active duty due to disability with severance pay effective 21 May 2007, with a physical disability rating of 10 percent. 12. His DD Form 214 covering this second period of service in the Regular Army shows he was honorably discharged on 21 May 2007 after 2 years and 7 days of net active service this period due to disability with severance pay. His rank/grade is listed as Specialist/E-4. 13. The applicant applied to the ABCMR on 5 July 2007 requesting an upgrade of his physical disability rating from 10 percent to 50 percent, allowing for his physical disability retirement in lieu of discharge with severance pay. He stated the PEB should have rated him 50 percent disabled for his sleep apnea and instead only rated him at 10 percent for his back condition. 14. In the adjudication of his 5 July 2007 application to the ABCMR, an advisory opinion was obtained from the APDA on 26 October 2007, which states: a. The applicant requested that his military records be changed to reflect disability retirement and an additional disability rating of 50 percent for his condition of sleep apnea. b. The applicant’s MEB listed back and neck pain as not meeting medical retention standards. All other listed diagnoses, including sleep apnea, were considered to have met medical retention standards. The applicant concurred with the MEB findings on 25 January 2007. c. On 14 February 2007, an informal PEB found the applicant unfit for his back and neck pain and rated him at a combined 10 percent and recommended separation with severance pay. On 15 February 2007, the applicant non-concurred and requested a formal hearing. At the formal hearing the applicant presented evidence that his sleep apnea should be found unfitting. The formal PEB considered this presented information, but found that the preponderance of the evidence did not support a finding of unfitness for that diagnosis. The formal PEB affirmed the informal PEB findings. The applicant non-concurred but offered no rebuttal or any additional evidence. d. The PEB’s findings specifically commented on the sleep apnea issue as follows: “Sleep apnea, diagnosis #7, was considered in detail, even though it met retention standards. Soldier’s symptoms are controlled by a Continuous Positive Airway Pressure (CPAP) machine. Electricity for a CPAP is available in Air Defense units. Soldier testified to completing a 7-day field problem, working 18 hours per day without a CPAP. Therefore, this condition was determined not to be unfitting.” e. The applicant’s condition of sleep apnea was considered moderate and the pulmonary clinic released him after treatment without limitations. The applicant’s Physical Profile did not list any performance restrictions for his sleep apnea and the Commander’s Performance memorandum does not mention this condition as hindering the applicant’s duty performance. The mere presence of an impairment does not of itself justify a finding of unfitness. Based upon the above, the PEB’s findings regarding the applicant’s sleep apnea are supporting by a preponderance of the evidence. f. The applicant’s rating of 10 percent of his back pain is correct as the only ratable physical findings were tenderness to palpation. The flexion range of motion limitation was not based on a mechanical deficit but was pain related only and not ratable. The applicant’s cervical pain was appropriately rated at 0 percent as he met none of the criteria for a higher rating. g. The applicant did not provide any evidence to support his claims of PEB error. The PEB findings were clearly and fully explained, were supported by a preponderance of the evidence, and were not in violation of any statute, regulation, or directive and were not arbitrary or capricious. 15. On 25 January 2008, the Board denied the applicant’s request, determining that the evidence did not demonstrate the existence of a probable error or injustice. 16. On 7 February 2008, the applicant again applied to the ABCMR, requesting reconsideration of his request for physical disability retirement in lieu of physical disability separation with severance pay. With this application he provided the following supporting documentation, which has all been provided to the current Board for their review: a. He provided a self-authored letter, wherein he stated he never claimed to take a CPAP machine, needed to treat his sleep apnea, to a field environment while serving in the Army and believes a statement he made may have been misconstrued and that he did not deliberately mislead any officials in that regard. b. He provided an email from the attorney who represented him at the PEB and was unable to represent the applicant at this juncture since he was no longer a Soldier, but he would be happy to speak with anyone regarding his claim. c. He provided multiple letters and statements from prior supervisors who observed the applicant’s performance and health problems and from American Legion representatives assisting him in his application. The letters from prior supervisors confirmed the applicant did not take or use a CPAP machine during field exercises nor did he participate in any field exercises once a CPAP was prescribed to him by the William Beaumont Army Medical Center. d. He provided a Polysomnography Report dated 26 September 2008, which shows an examination was conducted on the night of the report date, after his physical disability separation from the Army, and shows possible sleep apnea. 17. A letter from the ABCMR to the applicant, dated 29 December 2008, states his application to the ABCMR was returned without prejudice and without action by the Board based on the establishment of the PDBR to review disability determinations made by the services’ PEBs of those individuals who during the period from 1 September 2001 through 31 December 2009 were separated from the Armed Forces as unfit for duty due to a medical condition with a disability rating of 20 percent or less and were found to be ineligible for retirement. He was advised to apply to the PDBR. 18. The applicant provided a DD Form 294, dated 14 January 2009, wherein he presumably applied to the PDBR. 19. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents, the applicant's service records, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. The applicant is requesting to receive a rating of 50% for Obstructive Sleep Apnea (OSA) by the Army as he has received this rating from the VA thereby becoming eligible for Army medical retirement. He was diagnosed with Moderate OSA in August 2006 by Polysomnogram. On 3 October 2006 he was seen in the Pulmonary Clinic for part one (of two) of OSA education to include advice on weight loss, sleep positioning, avoidance of alcohol and sedatives, and sleep hygiene measures. Also discussed were the risks of untreated OSA. During part two of OSA education on 28 November 2006, he received the results of a trial of CPAP titration, during which the applicant reported leaking from his mask and increased air in his stomach. Nevertheless, he also reported he was more rested in the morning. The provider advised lab titration of his CPAP for better control. b. The 28 March 2007 follow up Polysomnography Report still did not show optimal control. Another provider started Provigil as an adjunct to decrease daytime sleepiness. On 25 April 2007, the pulmonologist made a minor adjustment upwards of the applicant’s CPAP and advised again to lose weight; he was advised to return at 1 year intervals for nasal CPAP and he was released without limitations. c. The MEB determined the condition did meet retention standards. The PEB did not find the condition unfitting, indicating the OSA did not interfere with performance. It is noted that the applicant attended a field exercise without requiring the use of his CPAP. The 17 November 2008 Memorandum for Record by his command indicates he did not take or use a CPAP machine during the week-long field duty. His command also noted the applicant did not function in his primary military occupational specialty, but worked in the kitchen or performed light duties due to profile limitations. d. The record shows no profile limitations for the OSA condition, but the records do show he had limitations due to his back condition. In addition, the applicant did not describe, nor did his command report observing any symptoms that interfered with performance that would be attributable solely to the OSA condition (e.g., excessive daytime sleepiness, need for reduced duty hours, etc.). Near the time of discharge on 7 May 2007, the Enlisted Record Brief showed P1 (no profile limitations for OSA). Review of medical evidence shows the OSA met retention standards and was not found unfitting by the PEB. The PEB applies ratings for unfitting conditions only. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. The Board concurred with the finding of the ARBA Medical Advisor that, in effect, there is insufficient evidence to support a conclusion that the PEB erred when it did not find his OSA unfitting. The Board agreed that a clear preponderance of evidence shows the OSA was not limiting his duty performance, which is the primary reason for finding a condition unfitting, and determined there is no error or injustice in his discharge for disability with severance pay. 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, 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. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015012 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1