ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 August 2019 DOCKET NUMBER: AR20170015966 APPLICANT REQUESTS: * Reward of combat “v” codes * Increased ratings assigned by Physical Evaluation Board (PEB) * Personal appearance before the Board 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) * Army Commendation Medal (ARCOM) Certificate and Recommendation * Military Outstanding Volunteer Service Medal (MOVSM) Certificate and Recommendation * Evidence of Migraines During Deployment (emails) * Evidence of Deployment Related Post-Traumatic Stress Disorder (PTSD) * PEB Results 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, that during the time of her Medical Evaluation Board (MEB), the "Board" ruled in her favor due to overwhelming evidence presented, however, she was not informed nor aware of" combat codes." Although, she was provided with an attorney during the process and at the board, both attorneys failed to mention or explain the benefit of such codes. During her deployment, she developed PTSD, migraines and degenerative disc disease. She attended a 3-month "individual" PTSD clinic to cope with the emotions from the deployment. She was referred to a specialist of neurology at Seton Hospital for the migraines and then referred to a surgeon who recommended surgery to place rods in her neck of which she declined. The three conditions in which the "Board" ruled that "Fail Retention" and for which she was separated from the Army, were the result of injuries sustained during deployment and all of which still plague her today. Additionally, a Department of Veterans Affairs (VA) Reconsideration of Ratings was not filed following the Board's decision to increase her Army rating. She makes this request to right a wrong, and states to receive compensation is not undeserving. 3. The applicant provides: a. DD Form 214, dated 28 December 2014, which states the applicant was permanently retired for disability, with an honorable characterization of service. b. ARCOM Certificate and Recommendation, dated 12 January 2011. c. MOVSM Certificate and Recommendation, dated 13 May 2011. d. Evidence of Migraines During Deployment, dated 9 October 2014, which states that the physician assistant she contacted had no recollection of treating her for migraines, but suggested she was treated by another medical professional. e. Evidence of Deployment Related PTSD, dated 29 September 2014, which states that the applicant completed the voluntary Strong Star Cognitive Processing Therapy f. PEB Results, dated 5 June 2014, which states that the board found the applicant was physically unfit and recommended a rating of 40% and that the applicant’s disposition be permanent disability retirement. 4. A review of her service records shows: a. She enlisted on 30 March 2009, in to the Regular Army (RA). She served in Afghanistan from 15 July 2010 to 1 July 2011. b. She was discharged on 6 November 2012 for immediate reenlistment. She reenlisted on 7 November 2012 in to the RA. c. The are no records of a MEB process in the applicant’s files, however her DA Form 199 (Formal Physical Evaluation Board Proceedings), reveals that the applicant received a 50% rating for a VA reconsideration for migraines, and 30% for adjustment disorder with depressed mood, chronic. She also received 10% for cervical degenerative disc disease. d. The PEB found the disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war. The disability did not result from a combat-related injury. The administrative correction is due to VA Decision Review Officer Reconsideration dated 24 September 2014; and changed to reflect rating of 70%. The DA Form 199-1, dated 5 June 2014, is superseded and replaced by this DA Form 199-1. The applicant did not sign the document. However, there is a clause stating that after a period of time prescribed, the PEB may proceed as if the applicant concurred with findings and recommendations. e. She was discharged on 28 December 2014. Her DD Form 214 shows she was discharged from active duty under the provisions of AR 635-40 (Personnel Separations Physical Evaluation for Retention, Retirement, or Separation), Chapter 4 (Procedures) with an honorable characterization of service. She completed 5 years, 6 months, and 14 days of active duty service. It also shows in: * item 23 (Type of Separation), Retirement * item 24 (Character of Service), Honorable * item 25 (Separation Authority), AR 635-40, Chapter 4 * item 26 (Separation Code), SEJ (Disability, Permanent (Enhanced)) * item 27 (Reentry Code), 4 * item 28 (Narrative Reason for Separation), Disability, Permanent (Enhanced) 5. On 13 February 2019, the applicant applied for Combat-Related Special Compensation (CRSC) and was denied for a second time for: a. PTSD – No new evidence to show combat related event caused condition. PEB states not combat related. b. Migraine Headaches – Medical records show, the applicant reported headaches since 17 years old. PEB states not combat related. c. Cervical Degenerative Disc Disease – Medical Records report first sign of cervical distress occurred 13 January 2012 with no deployment related event. PEB states not combat related. d. Radiculopathy - This condition is secondary to a condition which is not combat related. e. Greater trochanteric bursitis - Injuries sustained during Basic Training are not combat-related based upon current DOD guidance. The only exceptions are accidents or injuries sustained during Weapons Qualification or Combative training. f. Left lower extremity - Injuries sustained 10% during Basic Training are not combat-related based upon current DOD guidance. Medical record states due to performing job related activities. g. Right lower extremity - Injuries sustained during Basic Training are not combat- related based upon current DOD guidance. Medical record states due to performing job related activities. 6. On 7 May 2019, the United States Army Physical Disability Agency (USAPDA) Legal Advisor reviewed the applicant's case and rendered an advisory opinion and opined: a. As a result, while we concur with the applicant’s deployment related conditions, these facts by themselves do not correlate to a combat related administrative determination as required in law and are therefore dismissed from further consideration. b. With specific regard to the Chronic Adjustment Disorder (ChAD), numerous documents were reviewed to include the claimant's MEB appeal and supporting enclosures detailing a two year non-specific history that entirely disregarded any attributing Afghanistan-related causality. Consequently, the evidentiary record speaks for itself in the absence of facts and circumstances obviating any combat related cause and the unfitting ChAD diagnosis. c. We find the applicant's request to be legally insufficient. 7. On 13 May 2019, the applicant was provided with a copy of this advisory opinion to give her an opportunity to submit a rebuttal. She did not respond. 8. 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. 9. By regulation, DODI 1332.18, the PEB renders a final decision on whether an injury or disease that makes the Service member unfit or that contributes to unfitness was incurred in combat with an enemy of the United States, was the result of armed conflict, or was caused by an instrumentality of war during war. a. Incurred in Combat with an Enemy of the United States, meaning the disease or injury was incurred in the line of duty (LOD) in combat with an enemy of the United States. b. Armed Conflict, meaning the disease or injury was incurred in the LOD as a direct result of armed conflict. The fact that a Service member may have incurred a disability during a period of war, in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. c. Instrumentality of War During a Period of War, meaning the injury or disease was caused by an instrumentality of war, incurred in the LOD during a period of war. 10. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 11. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. The USAPDA found her request for relief legally insufficient. She was provided a copy of the advisory in order to give her the opportunity to submit a rebuttal; however, she did not respond. Based upon the preponderance of the evidence, the Board determined there was no error or injustice in this case. 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 38, USC, sections 1110 and 1131, permits 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. 2. 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. 3. 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, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635- 40. a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the 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 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. 4. Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. 5. AR 635-40 (Physical Evaluation for Retention, Retirement or Separation), establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, United States Code (USC). It 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 or her office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations. 6. AR 40-501 (Medical Services – Standards of Medical Fitness) governs regulation governs Medical fitness standards for enlistment, induction, and appointment, including officer procurement programs, Medical fitness standards for retention and separation, including retirement, Medical fitness standards for diving, Special Forces, Airborne, Ranger, free fall parachute training and duty, and certain enlisted military occupational specialties (MOSs) and officer assignments. It also governs Medical standards and policies for aviation, Physical profiles, and Medical examinations. 7. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 8. Department of Defense (DOD) Instruction Number 1332.18 (Disability Evaluation System (DES)), establishes policy, assigns responsibilities, and provides procedures for referral, evaluation, return to duty, separation, or retirement of Service members for disability. 9. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015966 2 1