ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 May 2019 DOCKET NUMBER: AR20180002500 APPLICANT REQUESTS: a medical retirement. 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) * Court Order name change * Service documents * Department of Veterans Affairs (VA) documents * Scholarship Certificate * Reserve Officers’ Training Corps (ROTC) acceptance letters 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 he was conditionally released from active duty in order to attend ROTC. While attending ROTC at the University of North Carolina-Charlotte it was determined he was not medically qualified to receive a commission or to continue serving due to asthma, post-traumatic stress disorder (PTSD) and other injuries received during his service in Afghanistan. It was explained to him he could go home without reporting to his previous duty station. If the correct discharge procedure was followed, he would have been medically retired due to his service-connected disabilities. He went to ROTC with a spinal injury and other disabilities that had not manifested. He believes he would have been able to heal during transition to ROTC. The ROTC command explained he could not receive a commission because he was taking medicine for PTSD, began using an inhaler for asthma, and continued to experience difficulty participating in physical training due to his back and leg pain. If he had stayed on active duty, he’s certain he would have received a medical retirement. He would like to be evaluated for a medical retirement. 3. On 23 May 2007, the applicant was conditionally selected to receive a ROTC Green to Gold Scholarship. 4. On 7 August 2007, the applicant was honorably discharged (not conditionally released) from the Regular Army in order to enter officer training program. There is no indication in the applicant’s available military records that he failed to meet medical retention standards while on active duty. 5. There is no documentation of any PTSD symptoms or PTSD diagnosis in the applicant’s available military medical record. Additionally, there is no documentation of any Behavioral Health symptoms or conditions in his active duty military medical record. 6. The applicant’s ROTC contract is not available for review and he does not provide it. Additionally, his separation orders are not available in the available record. 7. On 6 June 2018, the ABCMR obtained an advisory opinion from a clinical psychologist with Army Review Boards Agency (ARBA), who states, there is no indication in the applicant’s military records that he failed to meet medical retention standards in accordance with Army Regulation 40-501(Standards of Medical Fitness) while on active duty and based on the information currently available, a referral of the applicant’s record to the integrated disability evaluation system (IDES) for consideration of military medical retirement is not is indicated at this time. A copy of the complete medical advisory was provided to the Board for their review and consideration. 8. On 20 June 2018, in reference to the advisory opinion, the applicant made the following statement: a. Under the Green to Gold scholarship, he was under a conditional release from active duty. If he did not receive a commission, which he did not, he was to return to active duty for just over a year. In his case, he was told he was being medically released from ROTC and to return home. He thought he would receive paper work, or go through some medical review process, but he never did. b. He returned from Afghanistan in June of 2007 and by August of the same year (less than 60 days later) was enrolled in ROTC and attending college. He was in denial about some of his injuries and was not aware to what extent he was affected until he began to transition, which had not occurred yet at that point. Not to mention, they were asked if we had any PTSD/psychological trauma while in a line with other Soldiers side by side. No one was willing to admit to having problems. c. Had he been returned to active duty like should have been the case, for not receiving the commission / meeting the conditions of the release from active duty, the Army would have medical records showing his PTSD, back injury, asthma, and other injuries. The main point is he never received a final release from the Army, he was only conditionally released and was under the impression he was being medically released based on his inability to receive a commission. 9. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Paragraph 16-2 states Soldiers may be discharged for the purpose of entering a program leading to a commission or warrant officer appointment in any branch of the Armed Forces. Discharge will be effective the day preceding enlistment in the appropriate branch of the Armed Forces. 10. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 separation for disability. 11. 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. 12. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities, which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documentation, the advisory opinions and the evidence in the record. The Board discussed his release from active duty to enroll in ROTC and his subsequent release from ROTC due to failure to meet retention standards. The Board considered the advisory opinions that concluded he had not evidence of unfitting conditions, but determined that due to the events pertaining to his separation, that his records should be evaluated by the OTSG to determine if he had conditions warranting disability processing. 2. After reviewing the application and all supporting documents, the Board found the 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 the Office of The Surgeon General for review to determine if the applicant’s conditions at the time of separation warranted processing through the Disability Evaluation System. a. If a review by the Office of The Surgeon General determines the evidence supports processing through the Disability Evaluation System the applicant should be notified accordingly. b. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. 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 all back pay and allowances and/or retired pay, less any entitlements already received. 2. 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 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. Paragraph 16-2 states Soldiers may be discharged for the purpose of entering a program leading to a commission or warrant officer appointment in any branch of the Armed Forces. Discharge will be effective the day preceding enlistment in the appropriate branch of the Armed Forces. 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 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 (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 disability evaluation assessment process involves two distinct stages: the MEB and 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. 4. 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. 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 1110 and 1131, permit the VA to award compensation for disabilities, which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish an error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. ABCMR Record of Proceedings (cont) AR20180002500 0 5 1