BOARD DATE: 3 September 2020 DOCKET NUMBER: AR20180009733 APPLICANT REQUESTS: * in effect, amendment of his DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) to include consideration of the injuries from two line of duty (LOD) investigations * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * numerous sets of temporary change of station, activation, deployment, medical evacuation (MEDEVAC), and release from active duty (REFRAD) orders * self-authored memorandum for record * multiple DA Forms 2823 (Sworn Statement) * Behavioral Health Initial Intake Form * multiple Standard Forms 600 (Chronological Record of Medical Care) * DD Form 2697 (Report of Medical Assessment) * multiple DD Forms 214 (Certificate of Release or Discharge from Active Duty) * multiple DA Forms 2173 (Statement of Medical Examination and Duty Status) * DD Form 2900 (Post-Deployment Health Re-Assessment (PDHRA)) * DA From 638 (Recommendation for Award) * Disability Counseling Statement * DD Form 689 (Individual Sick Slip) * multiple Magnetic Resonance Imaging (MRI) reports * North Dekalb Orthopedics letter * multiple Department of Veterans Affairs (VA) letters * VA Form 21-4138 (Statement in Support of Claim) * multiple additional medical documents FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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. He is requesting that two formal LODs that were lost be entered into his record to account for the injuries he sustained during combat operations. During his transfer from the Missouri Army National Guard (ARNG) to the Georgia ARNG, his Retirement points Accounting Management (RPAM) records were wiped clean and parts of his personnel file went missing. He has been trying to correct this issue for 6 years. b. He is now in the process of undergoing a Medical Evaluation Board (MEB) and discovered that the LOD paperwork is also missing, which could mean he is only granted a physical disability discharge instead of a physical disability retirement, if the LODs are not included. He finds this unfair as he is undergoing the MEB for injuries he sustained during combat. He has provided paperwork he received from the Warrior Transition Units (WTU) at Fort Riley, KS, and Fort McCoy, WI. 3. The applicant enlisted in the Army National Guard on 7 November 2006. 4. A DD Form 214 shows the applicant was ordered to active duty in support of Operation Iraqi Freedom on 1 December 2007, with service in Iraq from 20 January 2008 through 26 August 2008. 5. The applicant provided an undated, self-authored memorandum for record wherein he tells of being on a patrolling mission near Forward Operating Base (FOB) Bucca, Iraq on 2 March 2008 when the vehicle in front of them was hit with an Explosively Formed Penetrator (EFP), causing them to also catch shrapnel and debris from the explosion. 6. He also provided two Sworn Statements, dated 21 March 2008, which corroborate the applicant’s sworn statement. 7. A Behavioral Health Initial Intake Form, dated 18 July 2008, shows the applicant indicated he went to the clinic on the date of the form because of thoughts of hopelessness, anger, and self-harm. He stated he never received mental health treatment before, he received a negative counseling for lack of focus and his significant issues at home were his marriage “going to crap.” 8. A Standard Form 600, shows: a. The applicant was seen at the Camp Bucca Troop Medical Clinic (TMC), Mental Health Clinic on 13 August 2008 for adjustment disorder with depressed mood and marital problems. He reported suicidal ideations with a possible plan. He says he thought of a million ways to kill himself over the past 48 hours. Just last night he returned from Rest and Relaxation (R&R) leave in the U.S. His marital problems became worse during R&R leave, which in turn exacerbated his depressive symptoms that had been present for the past 2 months. He had suicidal ideation without definite plan or intent about 1 1/2 months ago after his wife told him she wanted a divorce. b. He was voluntarily admitted to the hospital in a protective environment due to his severe suicidal ideation with plan and questionable intent, although not able to contract against self-harm. He was deemed to have questionable insight and judgement, but no psychosis or paranoia and no perceptual disturbances. His illness was deemed not work related and not battle related. He was diagnoses with adjustment disorder with depressed mood and marital problems. He was given a psychiatric evaluation and participated in individual psychiatric therapy and was to follow up as needed at the Behavioral Health Clinic. c. On 17 August 2008, the applicant returned to the Behavioral Health Clinic with active suicidal ideations and he turned his weapon in to his command because he wanted to shoot himself. He had received an email from his wife stating it was a waste of time to come home on R&R. It was determined he would be MEDEVACd to Landstuhl Regional Medical Center (LRMC) for inpatient treatment. His diagnoses remained adjustment disorder with depressed mood. 9. LRMC Orders A-08-816214, dated 25 August 2008, MEDEVACd the applicant for continued medical treatment to Fort Riley, KS on 25 August 2008. 10. A DD Form 2697 (Report of Medical Assessment), dated 8 September 2008, shows the applicant indicated he was treated by Behavioral Health and suffered from dizziness and nightmares. He was not on any medications and did not have any conditions that limited his ability to work in his primary military occupational specialty (MOS) or required geographic or assignment limitations. 11. Warrior Transition Battalion Orders 249-002, dated 5 September 2008, released him from attachment to the Warrior Transition Battalion at Fort Riley, KS and reassigned him back to his permanent duty station with the ARNG at Kansas City, MO effective 15 September 2008. 12. A DD Form 214 shows he was honorably REFRAD effective 21 September 2008, after 9 months and 21 days, due to the completion of required active service 13. A DA Form 2173 shows: a. The applicant presented to the Camp Bucca Combat Support Hospital on 13 August 2008 with depressive mood. He thought of a million ways to kill himself in the last 48 hours and was voluntarily admitted to the hospital for protection. b. The document was signed by the patient administrator on 29 September 2008. It was signed by the unit commander or unit adviser on an unspecified date. It was determined a formal LOD investigation was not required and the injury was considered to have been incurred in the LOD. 14. A DD Form 2900, dated 17 January 2009 shows: a. The assessment and referral indicated the following were minor concerns for the applicant: * physical symptoms * post-traumatic stress disorder (PTSD) * anger/aggression * suicidal ideation * social/family conflict b. The provider’s comments include: LOD for chronic cough, neck and knee pain and possible traumatic brain injury (TBI)/PTSD, anger/irritability, rare suicidal ideation with no plan. 15. A second DD Form 214 shows the applicant was ordered to active duty in support of Operation Enduring Freedom, entering active duty on 14 August 2009 and serving in Afghanistan from 27 October 2009 through 14 September 2010. 16. A Standard Form 600 shows the applicant was seen on 2 April 2010 for complaints of shortness of breath and left knee pain that began 2 1/2 weeks prior, after Improvised Explosive Device (IED) blasts. He was not in the blast, but he took a lot of debris into his lungs as a first responder. His knee pain is sharp and he attributed it to being in an awkward position while moving a patient out of the blast hole. He appears to have been diagnosed with eustachian tube dysfunction (ETD) and mild medical collateral ligament (MCL) strain (strain of ligament located on inner part of knee), prescribed Nasonex (nasal spray steroid used to treat allergies) and phenylephrine (decongestant), and advised to follow up in 2 weeks. 17. A Standard Form 600 shows the applicant was seen at the Ghazni Clinic on 6 August 2010 for dyspnea (difficulty breathing) after exposure to a homemade explosion (HME) while on a convoy mission in Afghanistan. His shortness of breath increases with running and is intermittent with other activity. He was asymptomatic during the visit and was released without limitations. He was given a trial prescription of albuterol and to follow up once redeployed in the next 2 weeks for pulmonary function tests. 18. A DA Form 638 shows the applicant was awarded a Bronze Star Medal for service on 10 August 2010 for his performance as a medic, saving lives in the Afghan combat zone for the period from 24 October 2009 through 15 September 2010. 19. A second DA Form 2173 shows: a. The applicant was seen at the FOB Ghazni Battle Aid Station on 6 August 2010 for shortness of breath with activity and left knee sprain. b. He was on a convoy mission with is unit when he responded as a medic to an IED blast. He may have twisted his left knee and was exposed to a HME. Afterward he had congestion, cough, and shortness of breath. The shortness of breath has persisted, requiring reevaluation and an inhaler. c. The details of the accident further state the applicant was conducting a rout clearance mission on 16 August 2010 when he acted as a first responder following an IED blast. He inhaled some dust and debris while he pulled Soldiers from the vehicle. He also twisted his knee while moving the Soldiers. He was treated for shortness of breath and MCL strain at the clinic. d. The form was signed by an attending physician on 14 August 2010 and by his unit commander on 15 August 2010. It was deemed a formal LOD investigation was not required and the injury was considered to have been incurred in the LOD. 20. The applicant provided multiple Sworn Statements dated 15 August 2010 corroborating the IED incident and the applicant’s exposure to dust and debris while acting as a first responder. 21. A Individual Sick Slip, dated 15 September 2010, shows the applicant suffered from bilateral knee pain since a blast in March 2010, shortness of breath after exposed to dust, blast in March 2010, and neck pain since the March 2010 incident for which he needed an LOD. An MRI showed radiculopathy. He was cleared to demobilize. 22. An MRI Report of the cervical spine, dated 27 September 2010 shows: * the skull base and C2, C3 were unremarkable * C3-C4 and C4-C5 left sided uncovertebral joint hypertrophy, causing mild to moderate left neural foraminal narrowing * C5-C6 broad-based posterior disc osteophyte complex along with uncovertebral joint hypertrophy causing moderate central canal narrowing and moderate bilateral neural foraminal narrowing * C6-C7 broad-based posterior disc osteophyte complete along with uncovertebral joint hypertrophy causing mild central canal narrowing and moderate bilateral neural foraminal narrowing * C7-T1 unremarkable 23. He participated in Post Deployment/Mobilization Respite Absence (PDMRA) from 2 October 2010 through 17 October 2010 and was honorably released from active duty on 25 November 2010 due to the completion of required active service. 24. The applicant provided numerous further documents dated from August 2011 through February 2013, showing his medical appointments through the VA for orthopedic treatment of his cervical spine and TBI treatment, all related to injuries sustained while deployed on active duty. 25. He provided a VA From 21-4138, making a statement in support of a VA claim on 27 April 2014. It speaks to his severe neck pain, migraine headaches, depression and TBI affecting his employability. His wife made a statement corroborating her husband’s extreme pain and inability to work as a result. 26. An MRI dated 15 October 2014 showed no change since his last MRI. 27. Documentation from the applicant’s MEB is not in his available records for review. 28. A DA Form 199 shows: a. A PEB convened on 13 April 2020 and found the applicant physically unfit, recommending a rating of 30 percent and that his disposition be permanent disability retirement. b. The applicant’s unfitting condition given a rating of 30 percent was cervical spine intervertebral disc syndrome status post cervical spine surgery with post surgery residuals (MEB diagnoses 1 and 2). The VA had reconsidered his condition after new documents were provided and confirmed this condition was caused by an instrumentality of war during a time of war. The applicant reported the onset of the condition was in 2010 when his military vehicle made an abrupt stop and he hit his head, while deployed to Afghanistan. c. The applicant was found fit for the following conditions, corresponding to his MEB diagnoses 3 – 11: * right ear sensorineural hearing loss * left ear sensorineural hearing loss * tinnitus * obstructive sleep apnea * lumbar spine herniated nucleus pulposus * right lower extremity radiculopathy * left lower extremity radiculopathy * right knee pain, etiology unknown * left knee pain, patellofemoral pain syndrome d. On 17 April 2020, the applicant concurred with the PEB and waived a formal hearing of his case. He did not request reconsideration of his VA ratings. 29. A National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service) shows the applicant was transferred to the U.S. Army Reserve Control Group (Retired Reserve) due to permanent disability effective 9 June 2020, after 13 years, 7 months, and 3 days of net service. 30. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: The applicant is applying to the ABCMR requesting affirmative line of duty determinations (LODDs) for his cervical spine and mental health conditions. He states “I am now in the process of Medical Board and discovered the physical LOD paperwork is missing which could mean I am only allowed a medical discharge instead of a retirement.” The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. His final discharge orders, ORDER D 127-44 dated 6 May 2020 show he was retired for permanent physical disability on 10 June 2020. The applicant was referred to the DES on 17 June 2019 for only one condition, “Neck injury/pain.” He only claimed “lower back”, “knees”, and “sleep apnea” as additional service connected disabilities. He did not claim a mental health condition. As such, there was no evaluation for a mental health condition and the medical evaluation board (MEB) did not identify a mental health condition. The MEB found his cervical related conditions to fail retention standards. The applicant subsequently requested an independent medical review (IMR) seeking the addition of his back and knee conditions to the MEBs findings. Again, there is no mention of a mental health condition. The IMR provider agreed with the applicant’s request and these two conditions were added to his Medical Evaluation Board Proceedings (DA 3947). After these additions were made, the applicant concurred with these findings on 23 August 2019. His Informal Physical Evaluation Board (PEB) Proceedings show he was found unfit for the sole condition of “Cervical spine intervertebral disc syndrome status post cervical spine surgery with post-surgery residuals. The applicant’s nine other medical conditions, which did not include a mental health condition, were found to not be unfitting for continued service. His cervical condition was determined to have been incurred in the line of duty, was initially rated at 20%, and he was recommended for separation with severance pay. The applicant requested that the VA perform a reconsideration of his ratings. This resulted in his disability rating being increased to 30% and the recommended disposition was subsequently changed to permanent disability retirement. His PEB liaison officer counseled him on the adjusted PEB recommended disposition on 17 April 2020, and he concurred with the PEB’s findings and recommendations on the same day. Directing the completion of LODDs for his cervical condition and reported mental health condition would have no effect on the outcome of his prior PEB or future health care at the VA. His cervical condition was determined to have been incurred in the line of duty by the PEB which led to his medical retirement. Submitted documents show the applicant did have mental health issues (adjustment disorder with depressed mood accompanied by thoughts of self-harm) related to his service. However, this was not part of his DES process. While a LODD is a piece of evidence the VA may use in reviewing a Veteran’s claim for service connecting a medical condition, the applicant has been service connected for this issue by the VA. However, he has not been seen at the VA for a mental health issue since 2015. Given the current information, it is the opinion of the Agency Medical Advisor that no Board is required. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that, in effect, the relief the applicant seeks has been overcome by events given that, subsequent to his application to the Board, he has been retired due to permanent disability. However, the Board noted that the DA Forms 2173 he provided, completed on or about 29 September 2008 and 15 August 2010, should have been filed in his record. The Board determined that documents should now be filed in his Official Military Personnel File. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by filing the DA Forms 2173 completed on or about 29 September 2008 and 15 August 2010 in his Official Military Personnel File. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. 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. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. 4. 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. 5. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180009733 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1