IN THE CASE OF: BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20180011268 APPLICANT REQUESTS: a medical retirement, and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical records * Documents from his Official Military Personnel File * Letter of support * Letter from the Department of Veterans Affairs (VA) 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, in effect: a. He should be considered for medical discharge due to his 100 percent service connection for post-traumatic stress disorder (PTSD). He was seen for care after returning from Iraq. He was serving in the reserve component with all of his problems. A medical evaluation board (MEB) was supposed to be done; however, the unit failed to do their part. He was stuck in the rear detachment without anyone willing to help. Incompetence in his chain of command was due to lower enlisted personnel being in charge. b. He was diagnosed with PTSD on 4 April 2008, right after being released from active duty. At that time he had a 30 percent disability rating for other things. He got out the ARNG in 2008. He reenlisted in the USAR in January 2009, after reenlisting he was seen in the PTSD clinic and was heavily medicated for years. He is still medicated and has had numerous emergency room visits. The USAR knew of his problems. He was threatened if he did not hand over is medical records he would be kicked out with an other than honorable discharge. c. He requested his medical records from VA for a MEB; however, the unit failed to do their part. He was placed in the individual ready reserve (IRR) in January 2011. He was eventually given a 100 percent disability rating for PTSD effective 28 December 2010. He feels as if he was done wrong and shoved out of the door. He was not properly processed out with a medical retirement, but was honorably discharged in 2013. 3. The applicant enlisted in the ARNG on 2 December 2005. 4. The applicant was order to active duty in support of Operation Iraqi Freedom and served in Iraq from 7 March 2007 through 30 January 2008. He was released from active duty, not by reason of physical disability and assigned back to his ARNG unit effective 27 March 2008. He was honorably discharge from the ARNG effective 1 December 2008. 5. On 26 May 2009, he was ordered to Active Duty Training School as a member of the United State Army Reserve (USAR). He completed training for military occupational specialty 92Y (Unit Supply Specialist) on 29 July 2009. 6. On 6 October 2009, the applicant was order to active duty for mobilization for Iraqi Freedom with a report date of 2 December 2009; however, these orders were revoked on 4 March 2011. 6. On 6 December 2010, the applicant was reassigned to the USAR (Reinforcement) due to cogent personal reasons with an effective date of 11 January 2011. 7. On 3 December 2013, the applicant was honorably discharged from the USAR. 8. His record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 9. The applicant provides a decision letter from VA showing he is 100 percent service- connected for PTSD. 10. On 19 December 2019, the Army Review Boards Agency (ARBA) clinical psychologist provided an advisory opinion. The advisory opinion stated, in part, based on a thorough review, there is insufficient documentation to indicate the applicant's PTSD, Depression, or Panic Disorder led to persistent and reoccurring hospitalization, duty limitations, or interference with military performance. Rather, the applicant's diagnosis of Personality Disorder would better explain any impairment. Moreover, Reserve and AHLTA records are void of a MEB referral or concern he was unfit due to a medically boardable condition. However, an August 2009 VA note indicated the applicant requested records related to a possible medical discharge. Given this may support the applicant’s assertion, a referral to the Disability Evaluation System (DES) is recommended for further determination. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. In response to the medical advisory, the applicant states, in part, he received a letter from the ARBA yesterday stating his paperwork will go to DES for further determination. He reiterates his aforementioned contentions and expresses he initiated a congressional inquiry which resulted in his favor; however, he provides no evidence to corroborate this contention. He further states he has a letter from VA supporting his claim he should have received a MEB. His complaints were dismissed and his medication left him unfit for duty. He admits to having a number of behavioral problems; however, he never officially got into trouble. His complete statement is available for the Board's review and consideration. 12. 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 13. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40. 14. 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. 15. 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. 16. 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. 17. Title 10, U.S. Code, sections 12731-12737 authorize retired pay for Reserve Component (RC) military service. To be eligible for retired pay under this law, a Reserve Soldier, upon attaining age 60, must have completed a minimum of 20 qualifying years. After 1 July 1949, a qualifying year is defined as a year in which at least 50 retirement points are earned. 18. Title 10 U.S. Code, section 3914 states under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20 years, but less than 30 years of service computed under section 3925 of this title may, upon his request, be retired. Section 3925 states for the purposes of determining whether an enlisted member of the Army may be retired under section 3914 his or her years of service are computed by adding all active service in the armed forces. 19. Army Regulation 135-180 (Qualifying Service for retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components (RC) Soldiers. Chapter 2 provides eligibility criteria. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service to include deployment, his reassignment to the USAR (Reinforcement), the reason for the reassignment and his discharge from the USAR. The Board considered the ratings he received from the VA, the review, conclusions and recommendation of the medical advising official and the applicant’s response. The Board found that the applicant’s PTSD diagnosis and the reason for his reassignment merited further review. Based on a preponderance of evidence, the Board determined that a referral to determine if his conditions supported disability separation or retirement was appropriate. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : 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: a. If a review by the Office of The Surgeon General determines the evidence supports further action, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to his discharge. 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. 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. 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, 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 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. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40 with the following caveats: a. USAR or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 or discharged from the USAR per AR 135–175 (Separation of Officers) or Army Regulation 135–178 (Enlisted Administrative Separations). They will be transferred to the Retired Reserve only if eligible and if they apply for it. c. Reservists who do not meet medical retention standards may request continuance in an active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reservists with nonduty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. d. Paragraph 9-12 states Reserve component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Reserve component Soldiers with nonduty related medical conditions, MEBs are not required and cases are not sent through the PEBLOs (Physical Evaluation Board Liaison Officers) at the military treatment facilities. 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 USARC Regional Support Command or the U.S. Army Human Resources 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. 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. Title 10 U.S. Code, section 3914 states under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20 years, but less than 30 years of service computed under section 3925 of this title may, upon his request, be retired. Section 3925 states for the purposes of determining whether an enlisted member of the Army may be retired under section 3914 his or her years of service are computed by adding all active service in the armed forces. 8. Army Regulation 135-180 (Qualifying Service for retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components (RC) Soldiers. Chapter 2 provides eligibility criteria and states, in pertinent part, that in order to qualify for non-regular retirement, a member must have: * attained age 60 * completed a minimum of 20 years of qualifying service * paragraph 2-8 defines qualifying service and states, that an RC Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180011268 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1