ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20170019711 APPLICANT REQUESTS: * the correction of his military service records to reflect qualification for regular retirement based on 20 years of active service or * the correction of his military service records to reflect qualification for a non- regular retirement at 20 years and was so retired or * consideration by a Medical Evaluation Board and if found to not meet retention standards to then be considered by a Physical Evaluation Board and if found unfit for retention be retroactively medically retired effective 30 November 2012 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Counsel * DD Form 214 (Certificate of Release or Discharge from Active Duty) * ARPC Form 249-E (Chronological Statement of Retirement Points) * DA Form 3349 (Physical Profile) * Excerpt of Orthopedic Consultation dated 26 Jul 2000 * Consultation notes dated 22 Jun 2001 * Medical Evaluation Board documentation dated 9 June 2000 * Memorandum for Record (MFR) dated 1 February 2010 (Medical Record Review) * MFR dated 19 February 2010 (Notification of Medical Retention Board Referral) * Acknowledgment of Medical Retention Board Referral * Letter from Home Health care Provider dated 11 August 2017 * Decision Review letter from the Veterans Administration Regional Office, Salt Lake City, UT dated 3 March 2010 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. On behalf of the applicant, legal counsel states that the applicant suffered a spinal injury while serving on active duty resulting in the issuance of a permanent medical profile. In 2000, the Army determined that the applicant’s medical condition may not meet retention standards and therefor referred him to a Medical Evaluation Board (MEB). The findings of the MEB resulted in the issuance a permanent profile indicating limitations in both his upper and lower extremities thereby preventing the applicant from fully discharging his duties a Soldier. Also noted in the board’s findings is a referral to the Physical Evaluation Board (PEB). On 30 September 2000, the applicant was released from active duty and transferred into the Army Reserve. At this time, the applicant understood that his PEB would be processed while he was in the Reserve. Review of his available records does not indicate that the applicant’s medical records were ever presented to a PEB for a fit for duty determination. Counsel further contest that in late 2009 to earl 2010 a review of the applicant’s medical records was conducted. On 26 January 2019 another permanent profile was issued indicating limitations that would further require a MEB. On 1 February 2010 a memorandum was constructed indicating that the applicant did not meet medical retention standards based upon five (5) medical conditions. On 23 March 2010, the applicant was notified that his case had been referred to a MEB of which determined him to be disqualified for continued military service. After receiving notification of the board findings, the applicant elected for case to be presented before a PEB to determine his fitness for duty. In 2012, the applicant was discharged from the military in absence of a PEB determination. 3. The applicant provides a: * DD Form 214 dated 30 September 2000 indicating his discharge from active duty; credited with 14 years 3 months and 15 days of active service and 1 year 11 months and 14 days of inactive service * ARPC Form 249-E dated 11 June 2013 crediting the applicant with a cumulative 6187 points towards retirement * DA Form 3349 dated 11 December 1991 indicating permanent physical limitations that preclude the applicant from taking the Army Physical Fitness Test * Excerpt of Orthopedic Consultation dated 26 Jul 2000 reflecting medical documentation associated with a medical condition * Medical Evaluation Board documentation providing the diagnosis of 5 medical conditions resulting in a recommendation for referral to a PEB * DA Form 3349 dated 26 January 2010 indicating permanent physical limitations * MFR dated 1 February 2010 indicating that a review of the applicants medical records was conducted and concluded that the he did not meet medical retention standards based on 5 medical conditions and should be processed for separation * MFR dated 19 February 2010 notifying the applicant of his case being referred to a Medical Retention Board (MRB) * Acknowledgement of Medical Retention Board letter wherein the applicant acknowledges receipt of the MRB results and options available to him; applicant elects referral to an informal PEB * A letter from a home health care provider, dated 11 August 2017, indicating that the applicant was ineligible for benefits effective 1 December 2012 and that recoupment of payment would be initiated effective 1 December 2012 * A Decision Review letter from the Veterans Administration Regional Office, Salt Lake City, UT dated 3 March 2010 indicating the resulting ratings received due to the applicants appeal 4. A review of the applicant’s service records shows the following on: * 1 July 1984 – initial entry date * 16 November 1988 – effective date of commission (oath of office) * 22 July 1991 – entered onto active duty * 11 December 1991 – a permanent profile issued recommending referral to MEB * 9 June 2000 – MEB results indicate recommendation for referral to a PEB * 11 July 2000 – identified as a 2-time non-selection for promotion to Lieutenant Colonel; further approved for continued active duty service * 27 July 2000 (Order#144-0007) – ordered to report to the transition point * 30 September 2000 – separation from active duty (unqualified resignation) and further assigned to the Army Reserve * 13 September 2007 (Order#07-256-00053) – reassigned within the Army Reserve * 17 December 2008 –commanders statement acknowledging referral to the PEB * 6 November 2012 (Order# 12-311-00005) – released from assignment for discharge processing * 30 November 2012 (Order# 12-312-00006) – discharged from the Army Reserve 5. The applicant’s military records are void of evidence indicative of the actual conduct or conclusion of any PEB proceedings. 6. On 26 February 2019 a request for an Advisory Opinion was submitted to the United States Army Physical Disability Agency (USAPDA). 7. On 8 March 2019 the USAPDA provided an Advisory Opinion finding that the evidence presented by the applicant to be legally sufficient to warrant further consideration by a PEB based on the guidance provided within Army Regulation (AR) 40-501 (Standards of Medical Fitness). 8. AR 40-501, Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), states that Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB as defined in AR 40–400 (Patient Administration) and will be referred to a PEB as defined in AR 635–40 (Physical Evaluation for Retention, Retirement or Separation). Physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEB at the time of identification. Physicians should not defer initiating the MEB until the Soldier is being processed for non-disability retirement. The PEB, under the authority of the USAPDA, will consider the results of the MEB, as well as the requirements of the Soldier’s MOS, in determining fitness. 9. Paragraph 3-41e.(1)(General and Miscellaneous conditions and defects) states that individuals will be referred to an MEB if the conditions (individually or in combination) result in interference with satisfactory performance of duty as substantiated by the individual’s commander or supervisor. 10. Paragraph 9-12 (Request for PEB evaluation) states that Reserve Component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the Army Reserve Personnel Command, Command Surgeon’s Office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. 11. AR 635-40, paragraph 4-13 (Referral to PEB) states that a Soldier being processed for non-disability separation will not be referred to a PEB unless the Soldier has medical impairments that raise substantial doubt as to his or her ability to continue to perform the duties of his or her office, grade, rank, or rating. Soldiers previously found unfit and retained in limited assignment duty status or a previous authority, will be referred to a PEB. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and an advisory opinion. The Board considered the statements from the applicant and counsel regarding his medical conditions, MEB and separation from the USAR, the applicant’s selection to appear before an informal PEB, his retention on active duty and unqualified resignation and the conclusion of the USAPDA advising official that states the applicant’s conditions warrant further consideration by a PEB based on the guidance provided within Army Regulation (AR) 40-501 (Standards of Medical Fitness). The Board concurs with the recommendation of the advising official. The Board finds insufficient evidence to support the applicant receiving an Active Duty 20-year retirement or a non-regular 20-year retirement. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records, to include the 9 June 2000 Medical Evaluation Board (MEB), to the US Army Physical Disability Agency to conduct a retroactive Physical Evaluation Board utilizing the rules and regulations contemporaneous with the applicant’s discharge. 2. Should a determination be made that the applicant should be separated or retired for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date, with entitlement to separation pay and/or retired pay. 3. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief without benefit of the review described above. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), states that Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB as defined in AR 40–400 (Patient Administration) and will be referred to a PEB as defined in AR 635–40 (Physical Evaluation for Retention, Retirement or Separation). Physicians who identify Soldiers with medical conditions listed in this chapter should initiate an MEB at the time of identification. Physicians should not defer initiating the MEB until the Soldier is being processed for non-disability retirement. The PEB, under the authority of the USAPDA, will consider the results of the MEB, as well as the requirements of the Soldier’s MOS, in determining fitness. 3. Paragraph 3-41e.(1) (General and Miscellaneous conditions and defects) states that individuals will be referred to an MEB if the conditions (individually or in combination) result in interference with satisfactory performance of duty as substantiated by the individual’s commander or supervisor. 4. Paragraph 9-12 (Request for PEB evaluation) states that Reserve Component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the Army Reserve Personnel Command, Command Surgeon’s Office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. 5. AR 635-40, paragraph 4-13 (Referral to PEB) states that a Soldier being processed for non-disability separation will not be referred to a PEB unless the Soldier has medical impairments that raise substantial doubt as to his or her ability to continue to perform the duties of his or her office, grade, rank, or rating. Soldiers previously found unfit and retained in limited assignment duty status or a previous authority, will be referred to a PEB. 6. Title 10 USC 1201 (Retirement) states that upon a determination by the Secretary concerned that a member is unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability incurred while entitled to basic pay or while absent as described in subsection (c)(3), the Secretary may retire the member, with retired pay computed under section 1401 of this title, if the Secretary also makes the determination with respect to the member and that disability specified in subsection(b). Determinations referred to in subsection (a) are determinations by the Secretary that based upon accepted medical principles, the disability is of a permanent nature and stable; the disability is not the result of the member's intentional misconduct or willful neglect, and was not incurred during a period of unauthorized absence; and either the member has at least 20 years of service computed under section 1208 of this title or the disability is at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination; and either the member has at least eight years of service computed under section 1208 of this title the disability is the proximate result of performing active duty, the disability was incurred in line of duty in time of war or national emergency; or the disability was incurred in line of duty after September 14, 1978. 7. Sections 1202 and 1203 of this title apply to a member of a regular component of the armed forces entitled to basic pay. Any other member of the armed forces entitled to basic pay who has been called or ordered to active duty (other than for training under section 10148(a) of this title) for a period of more than 30 days. 8. Title 10 USC1204 (Reservist Disability Retirement) states that upon a determination by the Secretary concerned that a member of the armed forces not covered by section 1201, 1202, or 1203 of this title is unfit to perform the duties of his office, grade, rank, or rating because of physical disability, the Secretary may retire the member with retired pay computed under section 1401 of this title, if the Secretary also determines that based upon accepted medical principles, the disability is of a permanent nature and stable; the disability was incurred before September 24, 1996, as the proximate result of performing active duty or inactive-duty training; traveling directly to or from the place at which such duty is performed; or an injury, illness, or disease incurred or aggravated while remaining overnight, immediately before the commencement of inactive-duty training, or while remaining overnight between successive periods of inactive-duty training, at or in the vicinity of the site of the inactive-duty training, if the site of the inactive-duty training is outside reasonable commuting distance of the member's residence; is a result of an injury, illness, or disease incurred or aggravated in line of duty ABCMR Record of Proceedings (cont) AR20170019711 5 1