IN THE CASE OF: BOARD DATE: 20 February 2020 DOCKET NUMBER: AR20180005770 APPLICANT REQUESTS: Revocation of the orders assigning him to the Retired Reserve and issuance of orders reassigning him to Headquarters and Headquarters Company (HHC) 5th Battalion, 159th Aviation Regiment (5-159th Aviation Battalion), for the purpose of completion of the Medical Evaluation Board (MEB) process. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * DA Form 3349 (Physical Profile), dated 18 July 2011 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 20 July 2011 * DD Form 689 (Individual Sick Slip), dated 20 July 2011 * DA Form 3349, dated 18 April 2015 * prior Army Board for Correction of Military Records (ABCMR) Record of Proceedings in Docket Number AR20140017912, dated 28 May 2015 * prior ABCMR Record of Proceedings in Docket Number AR20150014832, dated 7 March 2017 * ABCMR letter to applicant, dated 10 March 2017 * U.S. Army Human Resources Command (HRC) Orders C-05-705878, dated 1 May 2017 * HRC Orders C-05-705978, dated 2 May 2017 * Finance Records Review, dated 11 June 2017 * partial Department of Veterans Affairs (VA) decision, dated 30 June 2017 * DA Form 3349, dated 14 July 2017 * HRC Orders C-09-711975, dated 11 September 2017 * U.S. Army Reserve (USAR) Medical Profile Request Form, dated 19 September 2017 * partial undated Standard Form 507 (Functional Capacity Certificate) * HHC, 5-159th General Support Aviation Battalion memorandum for record, dated 4 October 2017 * numerous pages of email correspondence, dated between October 2017 – February 2018 * Headquarters, USAR Command (USARC) Orders 17-283-00001, dated 10 October 2017 * Standard Form 507, dated 5 November 2017 * DA Form 5016 (Chronological Statement of Retirement Points), dated 12 March 2018 FACTS: 1. The applicant states: a. On 7 March 2017, the ABCMR granted him full relief in response to a prior application requesting reassignment from the Retired Reserve to HHC, 5-159th Aviation Battalion, to enable correction of his records and pay. After the records and pay corrections, he was to be reassigned back to the Retired Reserve. Shortly after the ABCMR decision, his unit clerk called him and told him he was reassigned back in the unit and informed him of the ABCMR decision. The unit clerk then talked to the commander who informed the applicant that he still had to come in and drill while the process was ongoing. The applicant called HRC and the Chaplain’s office at the Pentagon, who told him the same information, so he started to drill at his old unit again. b. While in-processing with his unit, the medical staff told him he needed to updated his physical profile, because he already received an 80 percent disability rating from the VA, thus the MEB process would start. His commander told him that when the MEB process started, he would not be able to leave the unit or return to the Retired Reserve until the process was complete. His commander called the higher headquarters who told him to issue him transfer orders to keep him assigned to the HHC 5-159th Aviation Battalion until the MEB was complete. c. The subsequent transfer orders to the Retired Reserve moved him from his troop program unit (TPU) anyhow and he would like to be transferred back to his unit to complete the MEB process. He has called HRC and the Pentagon Chaplain’s office, both of whom informed him he could not go through the MEB while in the Retired Reserve. 2. After prior periods of enlisted service in both the U.S. Marine Corps Reserve and the Army National Guard, the applicant was appointed as a Reserve commissioned officer in the USAR effective 14 March 2006. 3. He provided a DA form 3349, dated 18 July 2011, which shows he was given a temporary physical profile for back pain and bilateral knee pain that expired on 16 September 2011. The physical profile limited him to running at his own pace and distance. 4. A DA Form 2173, shows he was examined at the Family Health Clinic at Fort Eustis, VA on 19 July 2011, after falling during a Leadership Reactionary Course training, injuring his back. This injury was determined to have been incurred in the line of duty. 5. In March 2012, he submitted a voluntary request for unqualified resignation of his commission. Accordingly, HRC Orders D-03-203779, dated 7 March 2012 honorably discharged him from the USAR effective 6 April 2012. 6. HRC issued an AHRC Form 249-E (Chronological Statement of Retirement Points) on 20 June 2014, showing the applicant accrued 20 years, 6 months, and 9 days qualifying service toward retirement. 7. On 24 July 2014, HRC provided the applicant with his Notification of Eligibility for Retired Pay at Non-Regular Retirement, also known as the 20-Year Letter. 8. On 4 August 2014 the applicant applied to the ABCMR requesting transfer to the Retired Reserve in lieu of his honorable discharge effective 6 April 2012. He stated at the time of his honorable discharge, he had been awaiting HRC’s update to his qualifying years’ service toward retirement and the issuance of his 20-Year Letter. Therefore, he had been unable to request transfer to the Retired Reserve at the time, as HRC did not make these corrections until after his honorable discharge. 9. In the interim, prior to the final adjudication of his pending application with the ABCMR, HRC Orders D-03-203779 had been revoked and the applicant returned to service in his TPU, without proper orders assigning him to his USAR unit. In this capacity, he completed battle drill assemblies on approximately 10 occasions between February 2015 and May 2015, all assigned against a Chaplain position for which he was not qualified. 10. A DA Form 3349, dated 18 April 2015, shows the applicant was issued a temporary physical profile rating of “2” for back pain, neck pain, and sleep apnea, with an expiration date of 15 May 2015. The form does not indicate a permanent profile rating of “3” or his need for an MEB. 11. An email from the Office of the Chief of Chaplains, dated 30 April 2015, informed the applicant his unit incorrectly assigned him to a Chaplain position and because he was not qualified to remain in the Chaplain Candidate Program or be accessed as a Chaplain, he had the option to enter the Retired Reserve, enlist, be reappointed to another branch, or be honorably discharged by 15 June 2015. 12. In a self-authored memorandum in response, the applicant indicated it was his intent and desire to further serve his country as a commissioned officer in another Army branch, as he was not qualified to remain in the Chaplain Candidate Program. The applicant makes no mention of undergoing the MEB process. 13. On 28 May 2015, the ABCMR approved his 2014 request for transfer to the Retired Reserve effective 6 April 2012. Subsequently, Headquarters, USARC Orders 15-169-00003, dated 18 June 2015, reassigned the applicant to the Retired Reserve effective 6 April 2012 due to the completion of 20 or more years of qualifying service for retirement pay at age 60. 14. In September 2015 the applicant again applied to ABCMR requesting amendment to his dates of transfer to Retired Reserve to a date after he performed battle assemblies, to enable the addition of retirement points and pay earned for that drilling time, as well as retroactive orders assigning him to his USAR unit prior to the date of his first attended drill. 15. On 7 March 2017, the Board granted his requested relief, directing: * the issuance of orders reassigning him from the Retired Reserve to his USAR unit effective 7 February 2015 * the issuance of orders reassigning him from his USAR unit back to the Retired Reserve effective 18 May 2015 * paying him all pay due and crediting him with the appropriate additional retirement points as a result 16. On 10 March 2017, the applicant was informed via letter from the ABCMR of this decision to grant full relief of his request. 17. HRC Orders C-05-705878, dated 1 May 2017, reassigned him from the Retired Reserve to the USAR Control Group (Reinforcement) effective 6 February 2015. HRC Orders C-05-705978, dated 2 May 2017, subsequently reassigned him from the USAR Control Group (Reinforcement) to the 5-159th Aviation Battalion (his drilling TPU). 18. The applicant provided a partial copy of a VA Decision, which shows he was awarded the following service-connected disability ratings effective 20 June 2017, for a combined rating of 80 percent: * hearing loss, 30 percent * tinnitus, 10 percent * post-traumatic stress disorder, 70 percent 19. He provided an unsigned Physical Profile Record, dated 14 July 2017, wherein he was issued a temporary physical profile for lower back injury/pain, with a rating of “1” in all physical categories. 20. An Army Reserve Medical Profile Request Form, dated 19 September 2017, shows the applicant’s request for a permanent physical profile for a condition that is service- connected. The condition is not specified. 21. The applicant provided the first page of an undated Functional Capacity Certificate Form, wherein he indicated he could carry and fire an individual assigned weapon and wear a helmet for 12 hours per day, but was unable to participate in most of the other Soldier tasks. 22. An 11 September 2017 email from the Army Chaplain’s office to the applicant states their office was willing to work with the applicant toward reappointment, as he could not remain assigned against a Chaplain position. If his unit had a valid vacancy for a non-Chaplain position they would work toward his reassignment on the condition he provide a unit acceptance memorandum and a memorandum of conditional release from the Chaplain Candidate Program for HRC approval. If a vacancy did not exist, he would receive an order placing him back in the Retired Reserve. 23. A 22 September 2017 email from the USARC to the applicant indicates his temporary physical profile was to expire in less than 14 days and he was to complete a packet including supporting medical documentation if he required a physical profile. 24. Headquarters, USARC Orders 17-283-00001, dated 10 October 2017, released the applicant from his current assignment in 5-159th Aviation Battalion and assigned him to the Retired Reserve effective 9 November 2017, due to sufficient service for retirement. 25. There is no indication in his records that the applicant was issued a permanent physical profile prior to the October 2017 orders reassigning him back into the Retried Reserve or that he had entered the MEB process or received medical recommendation of the need for an MEB prior to this date. 25. A 26 October 2017 email from a USARC nurse case reviewer to the applicant regarding his request for a permanent physical profile shows she provided him with guidance on requisite paperwork toward this end, to include providing written reports for diagnostic procedures, the last 3-5 office visit notes, physical therapy notes, lab work, etc. 26. A Functional Capacity Certificate, dated 6 November 2017, shows the medical provider indicated the applicant had permanent physical limitations related to osteoarthritis in both feet, hammertoes, corn on the toe, and plantar fasciitis. 27. The applicant’s DA form 5016, dated 12 March 2018, shows his last creditable day of service in the USAR was 9 November 2017, with his transfer to the Retired Reserve on 10 November 2017, with 20 years, 7 months, and 20 days of qualifying service toward retirement. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and regulatory requirements. The Board noted the facts presented above. The Board found no evidence that the applicant was recommended for or considered for a Medical Evaluation Board. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s transfer to the retired reserve effective 9 November 2017 due to sufficient service for retirement. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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 (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. 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. 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. 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) AR20180005770 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1