ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20180004358 APPLICANT REQUESTS: * retirement due to physical disability * in effect, correction of his National Guard Bureau (NGB) Form 23B (Army National Guard (ARNG) Retirement Points History Statement) to include missing active service * backdating of his Department of Veterans Affairs (VA) disability and unemployability ratings to 22 June 2010 * promotion to the rank/grade of staff sergeant APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * seven self-authored statements * Privacy Act Release forms * 411th Engineer Combat Battalion (Heavy) memorandum, dated 13 January 2002 * 495th Transportation Company memorandum, dated 3 September 2002 * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 5 August 2003 * DA Form 4651-R (Request for Reserve Component Assignment or Attachment), dated 5 August 2003 * Outprocessing Checklist, undated * two Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statements (LES) * DFAS letter, dated 10 September 2004 * DD Form 214, covering the period 23 June 2008 through 22 June 2010 * Executive Summary, dated 21 June 2012 * presumably self-authored response to Executive Summary, undated * NGB Form 23B, dated 27 February 2014 * VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) * VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) * VA, New York Harbor Healthcare System letter, dated 29 March 2017 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 (ABCMR) 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: a. When he was released from active duty on 22 June 2010, after three consecutive years in the field under deployment orders, the record shows he was severely disabled by post-traumatic stress disorder (PTSD) and should have undergone a Medical Evaluation Board (MEB) and eventually medically retired from the Army. b. He has been receiving VA benefits since 22 June 2010. He recently received a letter from his doctor indicating he is totally disabled due to a VA service-connected rating of 50 percent for PTSD, which was back-dated to 22 June 2010. In the interim, his VA disability percentage has been increased to 100 percent and he believes the effective date of his increased VA disability rating should likewise be backdated to 22 June 2010. c. In 2017, his primary care psychiatrist determined he was 100 percent disabled from PTSD and in his professional opinion determined he was unemployable due to his service-connected PTSD. The effective date of his VA unemployability rating of 100 percent should also be backdated to 22 June 2010. d. A review of his service records revealed that service time toward a retirement was erroneously omitted from his NGB Form 23B. Had that service time been properly accounted for, he would have been eligible for sanctuary and eventual retirement. When he was released from his last unit after being deployed for 3 straight years, he had served 17 years and 8 months toward retirement. He informed his command there was 1 lost year of service not accounted for and even appealed to the Judge Advocate, but was not granted sanctuary status which is given at 18 years, regardless of whether on active duty or in a Reserve status. e. The lost time was served in 2003 – 2004, and included annual training for which he was not compensated and five drills which were performed after his expiration term of service. He also accrued time not accounted for after his release from active duty on 22 June 2010, when he was disabled, which he was required to pay back to the Government. f. The source of this lost time stems from a lost enlistment contract from 2003, which he is forwarding along with other lost records and an LES from December 2003, from his lost year of service, which reflects a year to date earning of $2,870.22 and does not include his annual training or on the job training with B Company, 411th Engineer Battalion. His direct reporting superior at the time was Sergeant First Class X___ and his commanding officer was Captain (CPT) X____ of Fairbanks, AK. He has at least 2 years of lost time and had to pay back almost $3,000.00 to the Army for erroneous performance payment when in fact he should have been in the good by $2,000.00 based on time served. 3. The applicant requested, in effect correction of his NGB Form 23B to include missing active duty service as well as amendment to the effective dates of his VA unemployability ratings and VA disability ratings. a. The ABCMR will not consider any application or portion of an application if it determines the applicant has not exhausted all administrative remedies available to him/her. There is no evidence the applicant initially applied to the U.S. Army Human Resources Command prior to applying to this Board for correction to his retirement points. For resolution of this portion of his application, the applicant may submit a request in writing with his supporting documentation to the Commander, U.S. Army Human Resources Command, Human Resources Service Center (AHRC-PDR-V), 1600 Spearhead Division Avenue, Department 420, Fort Knox, KY 40122-5402, or email an unencrypted inquiry to: askhrc.army@us.army.mil. b. Additionally, the ABCMR does not have purview over VA determinations regarding the effective dates of VA service-connected disability ratings or VA unemployability ratings. For resolution of this portion of his application, the applicant may submit a request in writing with his supporting documentation to his servicing VA office. c. Based on this information, the applicant's requests pertaining to the correction of his retirement points to show additional active service and amendment of the effective dates of his VA disability and VA unemployability ratings will not be discussed further in this Record of Proceedings. 4. His NGB Form 23B shows after that two prior periods of active duty service in the U.S. Marine Corps, active duty lost time, and a non-military civilian break in service, the applicant enlisted in the ARNG for the first time on 31 March 1989. This form then shows the following alternating statuses: * ARNG unit member from 31 March 1989 through 15 May 1992 * USAR Control Group (Reinforcement) from 16 May 1992 – 30 March 1993 * non-military civilian break in service from 31 March 1993 – 23 August 1999 * U.S. Army Reserve (USAR) Troop Program Unit (TPU) from 24 August 1999 – 31 October 2002 5. The applicant provided a memorandum, dated 13 January 2002, signed by the Company B, 411th Engineer Combat Battalion (Heavy) unit administrator, detailing the drill dates for Fiscal Year 2003. 6. He provided a memorandum, dated 3 September 2002, authored by CPT X____ X____, the company commander of the 495th Transportation Company, a USAR unit in Florida (FL), for the selection authority of the Alaska (AK) ARNG. In the memorandum, CPT X____ highly recommends the applicant for a position with the AKARNG. There is no evidence of record he was accepted for assignment by a unit in the AKARNG. 7. He also provided a DA Form 1836, dated 5 August 2003, which shows he extended his 13 August 2000 enlistment/reenlistment agreement as a current member of a Troop Program Unit (TPU) of the USAR by 12 months, extending his ETS to 4 August 2004. In conflict with his listed current status on the form as a USAR TPU member, his listed unit of assignment on this Oath of Extension of Enlistment or Reenlistment does not reflect his USAR unit, but rather Company B, 411th Engineer Battalion, AKARNG. 8. He provided an LES which shows he received a payment of $1, 039.83 on 15 December 2003 for active duty for training from 7 December 2003 through 15 December 2003. He also provided a subsequent LES showing an unpaid debt balance of the previous total paid, amounting to $1,039.83, as of 30 January 2004. 9. His NGB Form 23B shows the following statuses for the applicant: * non-military civilian break in service from 1 November 2002 – 27 September 2006 * ARNG unit member from 19 June 2007 – 23 August 2007 10. A DD From 214 (Certificate of Release or Discharge from Active Duty), covering the period from 24 August 2007 through 23 May 2008, shows he was ordered to active duty with his ARNG unit in support of Operation Iraqi Freedom and served in Iraq from 29 October 2007 through 21 April 2008. He was honorably released from active duty due to the completion of required active service after 9 months net active service this period and returned to service as an ARNG unit member. His rank/grade is listed as sergeant/E-5. 11. He served on active duty as a member of the ARNG Reserve (AGR) under Title 32, USC (State controlled) from 23 June 2008 through 22 June 2010. A DD Form 214 shows he was honorably released from active duty due to the completion of required active service after 2 years of net active service this period. His rank/grade is listed as sergeant/E-5. 12. His NGB Form 23B shows he returned to service as an ARNG unit member from 23 June 2010 through 15 May 2012. 13. AKARNG Element, Joint Forces Headquarters orders 144-018, dated 23 May 2012, discharged him from the ARNG effective 15 May 2012, in accordance with National Guard Regulation 600 -200 (Enlisted Personnel Management), paragraph 6-35j, due to continuous and willful absence and transferred him to the ARNG (Inactive). The additional instructions state the applicant was not qualified for AK State retirement pay. His service was characterized as general and his rank/grade at the time of his discharge is listed as sergeant/E-5. 14. His available service records do not show: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 15. The applicant provided an executive summary, dated 21 June 2012, written by SFC X___ X___ and approved by MAJ X___ X___, of the ARNG, which states: a. The applicant, an Alaska Guardsman, met with Command Sergeant Major X___ on 18 June 2012 requesting assistance with issues pertaining to his interstate transfer. After thorough research, it was determined that the applicant did not follow through on required actions and may pose a security risk due to his erratic behavior in his emails. b. It was discovered he began to not show up for drill in June 2011. The State sent our notifications of pending discharge, but no action or response was given by the applicant. Approximately 8 months later, effective 17 February 2012, the State transferred him to the Inactive National Guard for unsatisfactory participation and sent him notification that he must report to the unit within 90 days or he would be discharged. Following this action, the applicant initiated emails back and forth with his first sergeant, who gave him guidance on ways to rectify the situation and return to active status (securing release from the Inactive National Guard). c. The applicant claims he attempted an interstate transfer move to the Florida (FL) ARNG. Interstate managers for both AKARNG and FLARNG have stated that no interstate transfer was initiated for the applicant. The applicant took no action or provided any additional communication. He received a general discharge and was placed in the Individual Ready Reserve in accordance with regulatory guidance. d. An Army National Guard manpower database shows the applicant is pending MEB and due to his medical status is ineligible for military service. He must seek assistance from the VA for any unresolved medical issues. He has exhibited a pattern of behavior that can be construed as a potential danger to others and himself, such as violent remarks in his emails and bringing a loaded weapon to the AKARNG armory. 16. The applicant provided an undated handwritten note, presumably self-authored and in response to the executive summary, which states, “The part about the loaded weapon is a LIE!!! The whole thing is a LIE!!!” 17. US. Army Human Resources Command Orders D-09-519591, dated 29 September 2015, honorably discharged him from the USAR Control Group (Reinforcement) effective 29 September 2015. His rank/grade is listed as sergeant/E-5. 18. There is no evidence of record the applicant was ever promoted to the rank/grade of staff sergeant/E-6. 19. The applicant provided a letter from the VA New York Harbor Healthcare System, dated 29 March 2017, which states he is a patient at the NY Harbor VA Medical Center and at present his psychiatric diagnosis of complex PTSD requires intensive treatment to maintain stability. He was unable to work entirely due to his condition and his PTSD diagnosis was a direct result of his military service, including deployment to Iraq. 20. On 5 June 2018, the Army Review Boards Agency (ARBA) clinical psychologist provided an advisory opinion. The ARBA clinical psychologist stated: a. A medical note, dated 28 April 2008 indicated the applicant was seen for a Post Deployment Health Assessment and at the time of the evaluation, he denied any current mental health and/or deployment related concerns at present and denied need for further follow-up at the time. A medical note dated 16 July 2009, indicated he was evaluated in an emergency room complaining of fatigue, a recent onset of headaches, and a 2-month history of memory loss. He reported difficulty remembering names of people he met and where he put things; however, he denied a recent head injury. b. A review of VA medical records indicated he has a 100 percent service- connected disability rating for diagnoses of PTSD, traumatic brain injury (TBI) , and bipolar disorder. He has also received treatment services for alcohol and cannabis use disorder and has a history of psychiatric hospitalizations, unemployment, and intermittent homelessness. c. The ARBA clinical psychologist concluded there is insufficient evidence to determine if the applicant met criteria for a boardable behavioral health condition during his time in service. There is a lack of information to include any indication that a ratable condition existed at the time of his separation. This observation does not negate his current diagnoses of and treatment for PTSD, TBI, and bipolar disorder from the VA, but the Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. The applicant’s military and medical records are incomplete and there is a lack of information to render a decision. A copy of the complete medical advisory was provided to the Board for their review and consideration. 21. The applicant was provided a copy of the advisory opinion on 8 June 2018 and given an opportunity to submit comments, but did not respond. 22. 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, or sexual harassment. Boards are 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 misconduct that led to the discharge. 23. 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. 24. 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. 25. 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. 26. 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. 27. National Guard Regulation 600-200 (Enlisted Personnel Management) prescribes criteria, policies, and procedures to classify, assign, utilize, transfer within and between States, provide Special Duty Assignment Pay, separate and appoint to and from Command Sergeant Major, ARNG and Army National Guard of the United States enlisted Soldiers. Paragraph 6-35 delineates reasons, applicability, codes, and board requirements for administrative separation or discharge from the Reserve of the Army and the State ARNG. Paragraph 6-35j states commanders may recommend discharge of Soldiers for unsatisfactory participation when they have accrued 9 or more unexcused absences within a 1-year period. Soldiers must be notified by registered or certified mail of the intent and projected discharge date. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, to include the medical advisory, which found a lack of information to include any indication that a ratable medical condition existed at the time of his separation, the Board found there was insufficient evidence to change his narrative reason for separation or his medical disability rating, as requested. Additionally, the Board found that there was no evidence to show that the applicant was ever promoted to Staff Sergeant, so the Board also recommended denying that portion of the request. Finally, the Board concluded that the record of the applicant had accurately depicted all his military service and no additional service warranted changing the record of the applicant. 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, 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. 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, or sexual harassment. Boards are 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 misconduct that led to the discharge. 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, 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. 7. National Guard Regulation 600-200 (Enlisted Personnel Management) prescribes criteria, policies, and procedures to classify, assign, utilize, transfer within and between States, provide Special Duty Assignment Pay, separate and appoint to and from Command Sergeant Major, ARNG and Army National Guard of the United States enlisted Soldiers. Paragraph 6-35 delineates reasons, applicability, codes, and board requirements for administrative separation or discharge from the Reserve of the Army and the State ARNG. Paragraph 6-35j states commanders may recommend discharge of Soldiers for unsatisfactory participation when they have accrued 9 or more unexcused absences within a 1-year period. Soldiers must be notified by registered or certified mail of the intent and projected discharge date. ABCMR Record of Proceedings (cont) AR20180004358 10 1