ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170017206 APPLICANT REQUESTS: his honorable discharge be changed to medical retirement. He also request Combat Related Special Compensation (CRSC). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate Of Release Of Discharge from Active Duty) * Proof and Acknowledgement of Representation * Applicant Statement * Request for Medical Retirement * Rating Decision * Medical Record * Purple Heart Certificate FACTS: 1. The applicant states, he offer this declaration in support of his application to request that his honorable discharge be changed to medical retirement effective the date of his discharge, or 11 September 2015, or a date that the Army finds appropriate, and that he be awarded all benefits that are afforded with a medical retirement. a. He was honorably discharged from the Army on 11 September 2015. About two weeks before he was discharged, he had a discussion with his chain of command about issues regarding the care of his son. He was a drill sergeant and going through a divorce. His son stayed with him and there was an issue of taking him to school and providing basic care as his sole provider. His chain of command was very inpatient with his situation, and basically told him, they needed another drill sergeant here now, and he had 2 weeks to get out. Before this time, he suffered many injuries that required ongoing treatment and future evaluation to determine the complete and future impairment on his career in the Army. In fact, in July 2015, his neurologist told the Army that he needed three more months to assess his condition. The migraines were having a profound effect on my ability to serve in the Army. The migraines were debilitating, and he could not work during the migraine episodes. The Department of Veterans Affairs (VA) had rated him at 50% for this issue. And, it is coupled and aggravated by several other disabilities that are provided in his VA rating decision. b. The 50% disability for migraines is chronic and during his time as a drill instructor, it impaired his ability to work, and his chain of command was not accommodating to his migraine condition, or his many other health issues. As such, his chain of command, unfortunately, disregarded his neurologists request for further assessment for a medical evaluation board and physical evaluation board (MEB/PEB), and jumped at the opportunity to seek a discharge due to his lack of a family care plan, and get another drill instructor that did not have medical issues. If given an opportunity, he would have been able to work out a care plan for his child. However, his medical disabilities have not improved ,and based on the assessment of his neurologist in July 2015, and the VA finding of 50% disability for migraines, among his many other health conditions, it is apparent that he should have been entitled to a PEB/MEB, and his disabilities required a medical retirement. As such, he requests his honorable discharge to be changed to a medical retirement as of September 11, 2015. However, if granted, he will waive his Army retired pay in lieu of his VA disability compensation. 2. The applicant’s provides: * Letter from his lawyer of representation * Veterans Administration (VA) rating decision * DD Form 214 * A breakdown of his medical record finding * Proof of receiving his Purple Heart 3. With respect to his request for payment of CRSC, his application to the ABCMR is premature. Army Regulation (AR) 15-185 (ABCMR), the regulation under which this Board operates, states in section II, paragraph 2-5, that the ABCMR will not consider an application until the applicant has exhausted all administrative remedies to correct the alleged error or injustice. If eligible, the applicant must first submit his request for payment of CRSC, with supporting documentation, to the Commander, U.S. Army Human Resources Command, CRSC Branch, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. As such, the issue of CRSC will not be discussed further in this Record of Proceedings. 4. The applicant service records show the following: a. He enlisted in the Regular Army (RA) on 21 August 1998. He held military occupational specialty 11B (Infantryman). He reenlisted on 21 May 2001 to 30 April 2005. b. He served in Afghanistan from 25 March 2004 to 3 November 2004. c. He was honorably released from active duty on 1 May 2005 at the expiration of term of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated in accordance with AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 4 completion of required active service. He completed 6 years, 7 months, and 10 days of creditable active military. d. He enlisted in the RA on 19 February 2009 for 6 years and 2 December 2013, he executed an indefinite reenlistment. e. He served in Afghanistan from 7 January 2009 to 29 December 2009 and from 19 March 2011 to 7 March 2012. f. On 20 July 2015, the applicant's immediate commander notified the applicant that he intended to recommend him for elimination from military service under the provisions of chapter 5-8 (parenthood) of AR 635-200. The reason for his actions, the applicant was informed on 23 April 2015 that he needed a valid Family Care Plan, he informed his chain of command he was unable obtain a plan and that he would not be able to continue with his drill sergeant duties. He was given an extension of 30 days to fulfill his obligation but failed to do so. g. On 20 July the applicant consulted with counsel. He was advised of the possible effects of a less than fully honorable discharge and the procedures and rights that were available to him. He further acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. h. On 20 July 2015 his immediate commander recommended separation from the Army prior to the expiration of his current term of service and to seek counsel. His commander is recommending his service be characterized honorable i. On 24 August 2015, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 5-8 and directed the applicant be issued an Honorable Discharge Certificate. j.. He was discharged from active duty on 10 September 2015. His DD Form 214 shows he was honorably discharged in accordance with AR 635-200, chapter 5-8 by reason of parenthood. His DD Form 214 confirms completed 13 years, 7 months, and 10 days of creditable active military service. 4. The Army Review Boards Agency (ARBA) clinical psychologist rendered a medical advisory opinion on 5 December 2017. The opinion states: a. The applicant’s medical conditions were duly considered at his time of separation and did not warrant disposition through medical channels. It is well documented that his chief complaint and treatment primarily focused Traumatic Brain Injury (TBI) symptoms, for which he received treatment from Neurology, Occupational Therapy, and TBI services. Although the applicant endorsed post-traumatic stress disorder (PTSD) symptoms in response to deployment stressors, there was no indication that this condition did not meet medical retention standards or that he was not able to effectively perform his assigned military duties due to this condition. b. This observation does not negate his diagnosis, treatment, or ratings from the VA; however, the VA conducts evaluations based on different standards and regulations. Although VA examinations can confirm diagnoses and determine if medical conditions occurred while on active duty, it does not address whether a medical condition meets or fails Army retention criteria or if it is a rateable condition that qualifies for medical retirement. In summary, the available evidence does not support the applicant’s contention that he should have been afforded a MEB/PEB prior to separation, as he did not have a history of a condition that did not meet medical retention standards. 5. The ARBA senior medical advisor rendered a medical advisory opinion on 8 December 2017. He stated a. His condition(s) did not fail medical retention standards IAW (in accordance with) Army Regulation (AR) 40-501(Standards of Medical Fitness), warranting a separation through medical channels. See ABRA Clinical Psychology advisory dated 5 December 2017 for details. The applicant met medical retention standards for adjustment disorder with depressed mood, depression, PTSD, TBl/post-concussion syndrome with history of traumatic brain injury, migraine headaches, should pain, thoracic midback pain, myofascial pain syndrome, hip pain, knee pain, patellar tendonitis, flat foot acquired (pes planus), history of various fractures and minor injuries, history of influenza A with pneumonia, hyperlipidemia, elevated blood pressure, and other physical, medical, and/or behavioral conditions IAW Chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 Physical Evaluation for Retention, Retirement, or Separation of military personnel that were applicable to the applicant's era of service. b. The applicant clearly met medical retention standards, performing duty as a drill sergeant both mentally and physically strenuous for the last two years of his enlistment period. He underwent Periodic Health Assessment (PHA) in 2014 and 2015 with PULHES-111111 as well as screening physical for application Ranger School (2014). The applicant was very physically fit and mentally capable based on his excellent evaluations (DA 2166-8). No permanent profiles or significant temporary profiles were found. The applicant had not reached any Medical Retention Decision Points (MRDP) at the time of active duty separation. The applicant was involuntarily separated for inability to establish a Family Care Plan after separation from his spouse. There is no documented evidence of any significant impairment to duty performance as a drill sergeant other than that related to childcare issues. Undoubtedly, he would have continued on active duty thru the completion of his enlistment if not for the challenges of single parenthood. c. 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. 6. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and comments. He responded on 19 December 2017 and stated: 7. He and his lawyer disagreed with the advisory opinion as it is incomplete, inadequate and ignores his declaration. The response stated: a. First, there is no mention whether the martial issues and childcare issues are secondary to the mentioned service-connected disabilities of PTSD, anxiety, depression, and adjustment disorder. The reviewer mentioned in the advisory opinion is not a medical doctor (M.D.), but a psychologist. According to VA Regulation, M21-lMR, Ill.iv.3.D.18.bA, the evaluation for TBI and related issues needs to be complete by a psychiatrist, neurologist, or neurosurgeon. As such, please refer the TBI and Migraine issue to a psychiatrist, neurologist, or neurosurgeon for a proper opinion for the matter at issue. As it stands, a reviewing psychologist is stepping into the place of the applicant neurologist, who indicated medical board proceedings may be appropriate. b. Further, the 50% finding from the VA via the rating system below demonstrates his migraines were of the highest severity, and did indeed require further evaluation and assessment, which would have made a medical board appropriate, and required a medical retirement. All relevant evidence must be considered in evaluating the fitness of a Soldier. Findings with respect to fitness or unfitness for military service will be made on the basis of the preponderance of the evidence. c. The advisory opinion outlines medical records, but wholly disregards his statement as to what was happening at his command. The medical records only account for a small portion of time spent and do not comment on the actual decisions, rationale, and processing of his discharge from the Army. Upon review of applicant statement, and in light of the file, an error and an injustice was made by pushing him out for parental issues. Which is the term used in the advisory opinion and the applicant rather than provide care for his medical condition. 8. By regulation (AR 635-200), Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities. Specific reasons for separation because of parenthood include inability to perform prescribed duties satisfactorily; repeated absenteeism and/or tardiness; inability to participate in field training exercises or perform special duties such as charge of quarters and staff duty noncom missioned officer; and non-availability for worldwide assignment or deployment according to the needs of the Army. 9. By law (Title 10, U.S. Code, chapter 61), the Secretaries of the Military Departments have authority to retire or discharge a member if they find the member unfit to perform military duties because of disability. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with AR 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 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. 10. By law (Title 38, U.S. Code, sections 1110 and 1131), the VA awards compensation for disabilities that were incurred in or aggravated by active military service. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory’s finding that no evidence of a medical disability or condition which would support a change to the character or reason for the discharge, the Board concluded that no error or injustice related to the discharge narrative reason was present which would warrant a change to the applicant’s record. Additionally, the Board finds the request for CRSC compensation should first be addressed by Human Resources Command (HRC) and since there is no evidence in the record to show that the applicant submitted a request with HRC and was denied prior to submitting his application with the ABCMR, the Board recommended denying that portion of the request as well. 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. AR 635-200 (Enlisted Personnel – Personnel Separations) governs the separation of enlisted personnel, sets forth the basic authority for the separation of enlisted personnel. Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities. Specific reasons for separation because of parenthood include inability to perform prescribed duties satisfactorily; repeated absenteeism and/or tardiness; inability to participate in field training exercises or perform special duties such as charge of quarters and staff duty noncom missioned officer; and non-availability for worldwide assignment or deployment according to the needs of the Army. 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. 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 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 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. 5. 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; 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 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 that misconduct which led to the discharge. ABCMR Record of Proceedings (cont) AR20170017206 7 1