IN THE CASE OF: BOARD DATE: 7 June 2018 DOCKET NUMBER: AR20170015844 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 June 2018 DOCKET NUMBER: AR20170015844 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests to change her honorable discharge to a medical discharge/retirement. 2. The applicant states she would like her discharge to be changed to a medical separation or medical retirement. She was failing her Army Physical Fitness Test (APFT) due to her feet and knee problems. The Department of Veterans Affairs (VA) gave her a 60 percent disability rating for her knees, feet, and post-traumatic stress disorder (PTSD). 3. The applicant provides a VA rating decision, dated 21 July 2017. CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Following prior enlisted service in the United States Army Reserve (USAR) and after a break in service, the applicant enlisted in the Army National Guard (ARNG) on 30 March 2007. 3. Her record contains: a. A Medical Prescreen of Medical History Report (DD Form 2807-2), dated 25 April 2001, for enlistment that shows all “no” markings with the exception of wearing contact lenses and being hospitalized on 3 November 2000 because of a car accident. It also shows in item 10 (Physician’s Summary and Elaboration of All Pertinent Data) the comments: (1) A history of asthma in 1994 through 1995. Her latest pulmonary function tests were undated and showed a normal vital capacity, normal spirometry, and no obstruction air-flow problem. (2) An attempted overdose on 3 June 1996. (3) An episode of passing out 20 to 30 minutes. It further shows that after a medical doctor’s review based on the information provided, the applicant’s enlistment was deferred. b. A Report of Medical History (DD Form 2807-1), dated 7 September 2001, completed for enlistment shows her current medication was birth control pills and she had no known allergies. It also shows the applicant marked “yes” indicating she was in good health. She marked “no” for all other responses. c. A Report of Medical Examination (DD Form 2808), dated 7 September 2001, completed for enlistment shows an unremarkable clinical evaluation. She was qualified for service. 4. On 16 April 2003, after failing two Army Physical Fitness Tests (APFTs) while attending advanced individual training (AIT), the applicant was counseled on being recommended for separation for unsatisfactory performance. 5. The applicant's immediate commander notified her of his intent to initiate the applicant's separation due to unsatisfactory performance. The commander indicated that the applicant had failed two consecutive record APFTs. He also stated the applicant was counseled and given remedial training. She still failed to meet physical standards. He recommended separation action with an honorable discharge. 6. The applicant acknowledged receipt of the commander's notification. She waived her rights and indicated she would submit a statement (unavailable) on her own behalf. 7. The separation authority approved the applicant's discharge and directed the applicant be furnished an Honorable Discharge Certificate. On 3 June 2003, the applicant was accordingly discharged. She had completed 9 months and 26 days of net active service. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in – * Item 18, in part: Member has not completed first full term of service * Item 25: AR 635-200, chapter 13 * item 26: "JHJ" * Item 28: "Unsatisfactory Performance" 8. On 6 March 2007, the applicant’s request for an exception to policy (NGB Form 22-3) was approved. She was granted a waiver for her unsatisfactory performance discharge from the USAR and allowed to enlist in the South Carolina Army National Guard (SCARNG). She enlisted in the SCARNG on 30 March 2007. 9. On 30 March 2009, the applicant was discharged from the SCARNG with uncharacterized service. Her NGB Form 22 (Report of Separation and Record of Service) shows she completed 2 years and 1 day of net service this period. It also shows in item 23 (Authority and Reason) she failed to attend initial entry training (phase I or phase II) within 24 months. 10. On 3 June 2016, the Army Discharge Review Board approved the applicant’s request to change the narrative reason for separation on her DD Form 214 to “Physical Standards” with the corresponding separation code of JFT. 11. In connection with this case, an advisory opinion was rendered by the Army Review Boards Agency, Senior Medical Advisor, dated 21 November 2017, wherein he stated: a. A VA note dated 28 February 2012, shows that based on evidence in C-file, the applicant was diagnosed with bilateral pes planus, bilateral plantar fasciitis, and bilateral retropatellar pain syndrome (RPPS) while on active duty in 2002. She saw a local provider in 2011 for plantar fasciitis and knee pain (no diagnosis given). Therefore the VA provider concluded it is at least likely as not that bilateral pes planus, plantar fasciitis and bilateral knee pain (called RPPS) in service is related to current conditions of feet and knees. b. Her records show – * Bilateral knee and bilateral foot x-ray series (3 April 2012) – normal knees; mild bilateral hallux valgus deformities and pes planus * Bilateral feet weight-bearing x-ray series (29 November 2013) – borderline pes planus bilaterally c. A VA summary of benefits dated 21 July 2017, shows a combined service-connected evaluation of 60 percent. Limited review of VA records through the JLV (Joint Legacy Viewer) showed 12 listed problems (11 VA entered) including adjustment disorder with depressed mood, legal blindness, syncope, right knee pain, congenital pes planus and infertility. The applicant is currently VA service-connected at 50 percent overall (per JVL review on 21 November 2017). d. There is no evidence that the applicant's currently reported PTSD is related to her military service. The applicant had an existed prior to service (EPTS) history of an attempted overdose on 3 June 1996 (i.e., suicide attempt or suicide gesture) indicating a pre-existing behavioral health condition. Nevertheless, the applicant's separation in 2003 (nor the one in 2009) was not related to a behavioral health condition(s). e. The applicant met medical retention standards for – * foot pain (bilateral plantar fasciitis) * knee pain (RPPS) * history of stress reaction (bilateral tibia, October 2002) * allergic rhinitis and dermatitis (rash) * EPTS (existed prior to service) pes planus * EPTS history of asthma * EPTS history of motor vehicle accident * EPTS history of attempted overdose * EPTS syncope and other physical medical, and/or behavioral conditions in accordance with (IAW) Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service f. The applicant's EPTS pes planus probably contributed to the applicant's tibial stress reaction in October 2002 with associated knee and foot pain. The applicant had adequate time for physical recovery and rehabilitation. The applicant failed to meet physical fitness standards for completion of IET (initial entry training). She was unable to successfully pass her APFT in March 2003. The applicant later met medical accession and/or retention standards for enlistment in the SCARNG in 2007. There is no medical indication for physical disability evaluation system (PDES) processing (i.e. no indication for medical evaluation board MEB/physical evaluation board PEB). There is no indication for military medical retirement. The applicant was separated for unsatisfactory performance and/or physical standards in 2003 and for failure to attend IET within 24 months in 2009. g. The applicant's medical conditions were duly considered during medical separation processing. 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. 12. A copy of the advisory opinion was provided to the applicant for comment and/or rebuttal. She did not respond. REFERENCES: 1. AR 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. Chapter 13 (Separation for Unsatisfactory Performance), paragraph 13-2e states that initiation of separation proceedings is required for soldiers without medical limitations who have two consecutive failures of the Army physical fitness test. 2. AR 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. It states medical evaluation boards (MEBs) and physical evaluation boards (PEBs) 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 the criteria in AR 40-501, chapter 3. Chapter 8 contains the rules and policies for disability processing of Reserve Component (RC) Soldiers. It states that a RC Soldier will be referred for medical processing through the disability system when a commander or other proper authority believes that Soldier is unable to perform the duties of his or her office, grade, rank, or rating because of physical disability. 3. AR 40-501 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 using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent. 4. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of disability incurred while entitled to basic pay. 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 of less than 30 percent. 6. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 7. 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 UOTHC 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. 8. 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; traumatic brain injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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 misconduct that led to the discharge. DISCUSSION: 1. On 3 June 2016, the Army Discharge Review Board approved the applicant’s request to change the narrative reason for separation on her DD Form 214 to Physical Standards. She is now requesting to change her honorable discharge to a medical discharge or medical retirement. 2. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions, including PTSD. In this case, the ARBA Senior Medical Advisor notes there is no evidence that the applicant's currently reported PTSD is related to her military service. The applicant had an EPTS history of an attempted overdose in June 1996 (i.e., suicide attempt or suicide gesture) indicating a pre-existing behavioral health condition. Nevertheless, the applicant's separations in 2003 and 2009 were not related to a behavioral health condition(s). 3. The Senior Medical Advisor further noted that the applicant met medical retention standards for her feet and knees. Her medical conditions were duly considered during medical separation processing. 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. 4. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, 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 Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015844 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170015844 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2