BOARD DATE: 24 July 2020 DOCKET NUMBER: AR20170018094 APPLICANT REQUESTS: amendment of his narrative reason for separation to physical disability in lieu of unsatisfactory performance, physical standards APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * two DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard) * DD Form 2808 (Report of Medical Examination), dated 20 July 2016 * DA Form 4856 (Developmental Counseling form), dated 5 August 2016 * multiple Mosier Medical Clinic records, dated August 2016 * Fort Lee Form 689-R (Sick Slip), dated 15 August 2016 * 59th Ordnance Brigade memorandum, dated 15 August 2016 * Line of Duty (LOD) documentation, dated August 2016 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) letter, dated 26 January 2017 * VA letter, dated 13 July 2017 FACTS: 1. The applicant states: a. He injured his back during Advanced Individual Training (AIT) and a physical profile was established at that time. He passed all requirements for completion of AIT except for the APFT, which was due to his back injury incurred in the LOD. His physical profile was challenged by Nurse Practitioner C____ and the applicant was released to do physical training (PT). He failed the APFT five times and each time returned to the Mosier Medical Clinic for assistance, yet Nurse Practitioner C____ and Ms. D____ continued to clear him for PT without looking into his ongoing pain or inability to perform the APFT. b. Finally, after the fifth failed APFT, he returned to the Mosier Medical Clinic where he insisted on speaking to another provider. He met with Mr. M____, who ordered an MRI and took the applicant’s medical issues seriously. The MRI showed degenerative spine/disc disease, a compression of the lower lumbar spine, and narrowing of the spine, but by the time his MRI results came back, his discharge had been completed and his narrative reason for separation was listed as physical standards instead of physical disability, as Mr. M____ instructed it should have been. c. The applicant requested an LOD investigation be performed on 16 August 2016 based on the injury to his lower back. The results of the LOD show the applicant injured himself in the LOD and that no formal investigation was required. The applicant has a service-connected disability form the VA for the degenerative disc disease at L4/L5 and right lower extremity radiculopathy, thus showing a service injury and a continuance of medical rationale for the disability which forced him out of the service. 2. The applicant enlisted in the Regular Army on 8 February 2016. 3. Two DA Forms 705, show he failed the following diagnostic and record APFTs: * diagnostic APFT, 16 May 2016, failed push-up and sit-up events * diagnostic APFT, 1 June 2016, failed push-up, sit-up, and 2-mile run events * diagnostic APFT, 6 June 2016, failed push-up and sit-up events * record APFT, 13 June 2016, failed push-up, sit-up, and 2-mile run events * record APFT, 12 July 2016, failed push-up and 2-mile run events 4. His records contain two DA Forms 4856, which show he was counseled on 13 June 2016 and 5 August 2016 for his record APFT failures and advised he would be flagged for suspension of favorable action until he passed his record APFT. 5. A DD Form 2697 (Report of Medical Assessment), dated 19 July 2016, shows the purpose of the assessment was for separation, the applicant was not referred for further evaluation, and applicant indicated the following: * compared to his last medical assessment, his overall health was worse due to his lower back pain * since his last medical assessment, he had been treated for an ingrown toenail, allergies, and his lower back pain * he did not have any conditions which limited his ability to work in his primary military occupational specialty 6. A DD Form 2807-1 (Report of Medical History), dated 19 July 2016, shows the purpose of the examination was separation and the applicant annotated the following on the form: * poor eyesight * lower back pain * he had an enlarged knee cap causing him pain for which he used a knee brace prior to surgery, which corrected the issue * he had two prior head surgeries to cut out an infection on the left side of his head 7. A DA Form 2808, dated 20 July 2016, shows the applicant underwent a medical examination on the date of the form, the findings of which are as follows: * the only listed abnormalities were scars on the right and left side of his head, the removal of his right toenail, and pes planus (flat feet) * he was found qualified for service with a physical profile rating of “1” in all categories * his listed medical conditions/diagnoses were dorsalgia (collective term for a group of conditions producing pain in the muscles, nerves, pones or joints of the spinal column), low back pain, seasonal allergies, cellulitis of the right toe, and ingrown nails 8. A DA Form 3822 (Report of Mental Status Evaluation), dated 28 July 2016, shows: * the applicant was psychiatrically cleared for administrative separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 13, or any administrative action deemed appropriate by the command * he was found fit for full duty, including deployment * he had no psychiatric diagnoses * he was returned to duty 9. On 15 August 2016, his immediate commander notified the applicant of her initiation of action to separate him with an honorable characterization of service under the provision of Army Regulation 635-200, chapter 13, for unsatisfactory performance, APFT failure. She advised him of his rights, to include consulting with counsel and submitting statements in his own behalf. 10. On 15 August 2016, the applicant acknowledged receipt of the notice from his commander informing him of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, chapter 13 and the rights available to him. On 16 August 2016, the applicant waived his right to consult with counsel and did not submit statements in his own behalf. 11. The applicant provided multiple medical documents, to include three Mosier Medical Clinic Sick Call Slips, a Patient Checkout Form, Outpatient Active Medications List, which show: a. The applicant was seen at the Mosier Clinic on 15 August 2016 for numbness and tingly feeling in his pinky and ring finger as well as on an unspecified date for severe lower back pain. b. At the 15 August 2016 appointment, an MRI at the Naval Medical Center Portsmouth for paresthesia (burning or prickling sensation) of the skin was requested, a medication list reconciliation done, and treatment and potential side effects were discussed. The applicant was advised to return to the Troop Medical Center on 17 August 2017 to schedule an MRI. c. On an unspecified date he was to be seen by physical therapy for an evaluation for shoe inserts and given a shoe selection sheet for his pes planus and ankle problems. d. A Sick Slip, dated 15 August 2016, shows the applicant’s injury was hand/wrist pain. He was limited to no APFT and many drills and functional activities were limited. He had no limits to his aerobic activity, sit-ups, and various other load bearing and conditioning drills. In the remarks section it states to see prior physical profile. That physical profile is not in the applicant’s available records for review. 12. A DA Form 2173, dated 16 August 2016, shows the applicant was seen as an outpatient at Kenner Army Health Clinic on 14 June 2016 and his injury was listed as lower back pain. He was seen on follow-up appointments for diagnosis and continued care. 13. The applicant provided a partial memorandum for the Military Medical Support Office, Reserve Eligibility, dated 17 August, which states: a. Based on the findings of an informal LOD, a formal LOD was not required. It was determined that while in training, during the period 22 April 2016 through 19 July 2016, the applicant received treatment for a lower back injury the occurred while in training. The injury was found to have been incurred in the LOD. b. Upon completion of his separation proceedings under the provisions of Army Regulation 635-200, chapter 13, the applicant would return to his home of record and would need a DA Form 2173 in order to continue to receive care for his medical condition. 13. The applicant’s discharge packet was endorsed by his battalion commander and on 25 August 2016, the approval authority directed the applicant’s honorable discharge under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance, APFT failure. The applicant was deemed ineligible for transfer to the Individual ready Reserve (IRR). 14. His DD Form 214 shows he was honorably discharged on 2 September 2016, after 6 months and 25 days of net active service, under the provisions of Army Regulation 635-200, chapter 13. His narrative reason for separation lists “physical standards.” 15. A VA letter, dated 26 January 2017, shows the applicant was granted a service- connected disability rating of 10 percent effective 3 September 2016 for his degenerative disc disease, L4/L/5 claimed as lower back condition. 16. A second VA letter, dated 13 July 2017, states the applicant had insufficient qualifying active duty service after 10 September 2001 to qualify for eligibly for the Post- 9/11 GI Bill. 17. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, 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 the reason for his separation be changed from unsatisfactory performance to physical disability. The applicant enlisted in the Army on 8 February 2016. While in advanced individual training, he asserts he began having back pain that was attributed to an injury he sustained during his training. He was seen at his treating medical center on eleven occasions prior to initiation of separation action by his command. On each evaluation the examiner only found subjective symptoms related to motion and palpation with no objective findings. b. An MRI of the lumbar spine completed on 17 August 2016 reportedly demonstrated mild degenerative disc disease at L4-L5 with no neural foraminal narrowing, no vertebral compression, and no significant spinal canal narrowing. The MRI findings of mild disc degeneration is extremely unlikely to have occurred during the brief time the applicant served on active duty, and likely existed prior to service and was aggravated by increased physical activity required of him by Army training. There is no indication that this condition did not meet retention standards in accordance with Army Regulation 40-501, Chapter 3, or that the condition would have been determined to be unfitting. c. It is noted that the applicant failed to successfully complete the APFT on five separate occasions between 16 May 2016 and 12 July 2016. He was separated on 2 September 2016 IAW AR635-200, Chapter 13 with a narrative reason of “physical standards.” Therefore, based on the available information, it is the opinion of the Agency Medical Advisor that insufficient evidence exists to warrant a change in the reason for the applicant’s discharge related to any medical condition. 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 conclusion of the ARBA Medical Advisor that the applicant's mild disc degeneration was unlikely to have occurred during his brief period of active duty and likely existed prior to service. The Board found insufficient evidence to support a conclusion that the applicant should have been processed for separation based on physical disability. Based on a preponderance of evidence, the Board determined the reason for the applicant's discharge by reason of "physical standards" is not in error or unjust. 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, 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, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 physical evaluation board (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. 2. 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. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 contains policy and outlines procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. b. Initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the APFT or who are eliminated for cause from Noncommissioned Officer Education System courses, unless the responsible commander chooses to impose a bar to reenlistment. c. The service of Soldiers separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military records. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170018094 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1