IN THE CASE OF: BOARD DATE: 10 August 2020 DOCKET NUMBER: AR20180011990 APPLICANT REQUESTS: consideration by a Medical Evaluation Board (MEB) for injuries sustained while on active duty. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge From Active Duty) dated 29 December 1989 * Department of Veterans Affairs (VA) Certification for Schedule “A” Eligibility letter dated 24 January 2017 * VA letter date 20 September 2017 * VA letter dated 28 September 2018 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 that he was discharged from the military due to a failed drug urinalysis (cocaine). He contests that he has never used drugs other than those prescribed to him by a physician. He adds that his First Sergeant while stationed in Hawaii was racist. At the time he was a sergeant (SGT) / E-5 light infantry squad leader responsible for 11 other Soldiers (privates) that were recent Basic Combat Training (BCT) graduates. He had multiple Soldiers inform him that they were “hot” because they had smoked marijuana previously and would fail the unit urinalysis; however none tested positive. He was the only one that tested positive for cocaine. He knew that this was a set up by the First Sergeant as he did not like him because he spoke up for what was right. He adds that he was injured, while serving, during a live fire exercise that has since resulted in his diagnosis of post-traumatic stress disorder (PTSD), agoraphobia, and severe panic attacks. 3. A review of the applicant’s available service records reflects the following: a. On 26 July 1983 he enlisted in the United States Army Reserve under the Delayed Entry Program. b. On 3 October 1983 he enlisted in the Regular Army as an 11B (Infantryman) c. On 4 May 1987 he was promoted to the rank of SGT. d. On or about 24 January 1989 he proceeded on permanent change of station orders to Schofield Barracks, Hawaii. e. On 12 October 1989, a urinalysis was conducted by his assigned unit. On 23 October 1989, the results indicated that he tested positive for cocaine. f. On 5 December 1989, he was issued an Article 15 for the wrongful use of cocaine in violation of Article 112a of the Uniform Code of Military Justice (UCMJ). His punishment was reduction to the rank of specialist (SPC) / E-4, forfeiture of $541 per month for 2 months, and 45 days of extra duty. g. On 13 December 1989 he was advised of the commander’s intent to initiate separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14. He was advised of his right to counsel and waived his right to consideration of his case by an administrative separation board. Further, he acknowledged having an understanding that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. h. On 14 December 1989 the separation authority approved the requested separation for the commission of a serious offense. His service was to be characterized as “general” and he was to be issued a DD Form 257A (General Discharge Certificate). i. On 29 December 1989 he was discharged at the rank of SPC from the Army under the provisions of AR 635-200 Chapter 14, paragraph 14-12c (Misconduct) and his service was characterized as under honorable conditions (general). His total service reflects 6 years, 2 months, and 27 days. j. The change of the applicant’s narrative reason for separation to “Misconduct” was granted by the Army Discharge Review Board in Docket Number AR2002067878 on 15 March 2002, wherein the Board determined that his discharge was proper; however, a change in his narrative reason for separation was warranted. As such the board directed that a new DD Form 214 be issued. 4. The applicant provides the following: a. DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 29 December 1989 – see 3j. above. b. Department of Veterans Affairs (VA) Certification for Schedule “A” Eligibility letter dated 24 January 2017 reflective of special hiring consideration due to his intellectual disabilities, severe physical disabilities, or psychiatric disabilities. c. VA letter date 20 September 2017 reflective of his 80% service connected rated disability. d. VA letter dated 28 September 2018 reflective of specific diagnosed rated conditions and there assigned percentages. He is currently in receipt of a 50% disability rating for PTSD. 5. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations. a. A Personnel Qualification Record (Part II) with a review date 8 February 1989 showed the following limitations: no running, no jumping, no physical training, no rucksack. Less than 2 years after discharge, on 2 August 1991, the applicant had a lumbosacral film that showed slight curvature of the spine, apex (the top tip) to the left; otherwise, the film was normal. The clinical history given at that time was his back was injured when “gun fighting position caved in and fell on his back. Has had lower back pain since then, constant, made worse by lifting or bending.” b. In a 3 September 2004 Compensation and Pension exam, the applicant gave more details of the back injury stating it occurred in the mid to late 1980s (1986 in another report) while temporarily assigned to the National Training Center at Fort Irwin, California. He was in a foxhole which collapsed pushing plywood and sandbags onto his back and fixing him in a forward flexion position. He was medically air evacuated to an acute medical clinic or an emergency room. Following that, he was on limited duty. The exam showed his back range of motion was markedly limited in range with forward flexion to 20 degrees (normal is 90 degrees). His range of motion is limited by pain. The lumbosacral film was read as normal. He denied radiation into the legs, numbness, tingling, weakness, or classic sciatica in a later exam. c. The applicant was separated from service for use of cocaine. He denied ever using drugs and believed he was set up by his First Sergeant whom he believes was a racist. He stated that the First Sergeant also denied him the opportunity to retest. As a result, the applicant was chaptered out of the military with his service characterized as under honorable conditions (general). The medical record shows the applicant has been employed since discharge. There were no documented issues with alcohol or drug use. Because of the circumstances of his back injury, he cannot be in small spaces like elevators. He was diagnosed with PTSD with anxious distress after discharge. d. It is the reviewer’s opinion that the medical evidence suggests the back condition did not meet retention standards: The applicant stated the back injury occurred in the mid 1980’s and the Personnel Qualification Record (Part II) in 1989 still showed significant limitations, especially since he was not permitted to do physical training, which could hold the consequences of not being able to take certain training courses and/or not be able to progress in rank. In addition, the nature of the injury and the marked decrease in range of motion also support that the back condition did not meet retention standards. The reviewer recommends referral for medical discharge processing. The VA rated the back at 40% disabling. VA records showed the applicant has 80% total combined disability for the following VA rated disabilities: PTSD and agoraphobia with panic attacks (50%); intervertebral disc syndrome, lumbar (40%); left femur fibrous dysplasia (10%); and radiculopathy, right lower extremity (10%). Medical evidence is insufficient to support that PTSD, left femur fibrous dysplasia, and right lower extremity radiculopathy failed medical retention standards. 7. See applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: The Board concurred with the finding of the ARBA Medical Advisor that the applicant's back condition may have warranted referral to a MEB. The Board determined the evidence supports referring the applicant's records to the Office of The Surgeon General for review to determine if the applicant should have been discharged or retired due to physical disability. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 referring his records to the Office of The Surgeon General for review to determine if the applicant should have been discharged or retired due to physical disability. a. If a review by the Office of The Surgeon General determines the evidence supports processing through the Disability Evaluation System, the applicant will be afforded that process. b. In the event that a formal Physical Evaluation Board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her 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 retired for disability, these proceedings serve as the authority to issue the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 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 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. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. It awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. As a result, these two Government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment. 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) AR20180011990 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1