BOARD DATE: 3 April 2020 DOCKET NUMBER: AR20180012684 APPLICANT REQUESTS: her honorable discharge (HD) be change to a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * On-line Application * 2 DD Forms 214 (Certificate of Release or Discharge from Active Duty) 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, she was on a physical profile for a foot injury from 2013 until she was discharged in 2015. When she got to Fort Carson she asked her primary care provider about the process for a medical evaluation board (MEB). She was told overweight Soldiers are not given a MEB and she was having foot pain because her weight. Her discharge also needs to be evaluated because after her deployment to Kandahar, Afghanistan, she began having issues with sleeping. 3. After having prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army on 14 October 2010. She served in Afghanistan from 07 December 2011 through 04 December 2012. 4. The available service record is void of documentation nor does she provide evidence showing she was treated for an injury or an illness that warranted her entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication she was issued a permanent physical profile or underwent a MEB or a physical evaluation board (PEB). 5. There is no evidence in the applicant's service records which shows she made a written request for a separation physical examination prior to her discharge. 6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 4, in effect at the time, provided, in pertinent part, for the discharge or release from active duty upon termination of enlistment, and other periods of active duty or active duty for training. This regulation also stated, in pertinent part, that medical examinations were required for members separated per paragraphs 5-3 or 16-4 and Chapters 8, 9, 12, or 13. Medical examinations under any other provision of this regulation were not required, but could be requested by members in writing. 7. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the PDES 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. 8. 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. 9. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the applicant’s iPERMS records and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant, with primary MOS 36B10 Financial Management, requested review of records for consideration for medical discharge. She contends she was being seen for a foot injury and was placed on profile for this. In addition, she had sleep issues when she returned from deployment from Afghanistan. The applicant was seen from Aug 2013 to Sept 2014 to include a round of physical therapy for right foot pain. She was eventually diagnosed with chronic right foot tendinitis. The 16 Jan 2014 weight-bearing film showed normal bilateral feet. On 26 Aug 2014, the podiatrist indicated the condition was resolving and in September, the applicant was fitted for custom orthotics for permanent use. The applicant was seen 15 Mar 2013 and 22 Apr 2014 for insomnia and was counseled on sleep hygiene which was minimally helpful. Symptoms improved with use of over the counter sleep aids. Later, on 26 Jun 2014 a provider surmised the insomnia was related to underlying anxiety and prescribed a daily sleep medication. The condition never required treatment by behavioral health specialists. During the 22 Sep 2014 Carson Outpatient visit for ETS, the applicant was cleared for separation. Her depression screen was negative. Neither the foot condition, nor the behavioral health condition (to include insomnia and anxiety) resulted in significant duty limitations, permanent profiles, recurrent emergency room visits, or extended/recurrent hospitalizations. IAW AR 40-501, these conditions met retention standards. As such, referral to the Army DES for consideration of medical disability is not indicated. BOARD DISCUSSION: 1. The Board considered the applicant’s request, supporting documents, evidence in the records and a review by the ARBA medical advisor. The Board considered the applicant’s statement, her record of service, the absence of evidence of a condition that failed medical retention standards, evidence of a permanent (P3) profile or a request for a separation physical, and the reason for her separation. The Board considered the review by the agency medical advisor. Based on a preponderance of evidence, the Board determined that the reason for the applicant’s separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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, 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. Army Regulation 635-40 establishes PDES 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 separation for disability. a. The disability system assessment process involves two distinct stages: the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his or 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees. 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. 3. Army Regulation 40-501(Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities. The VA Schedule for Rating Disabilities is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 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 at less than 30 percent. 5. 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 an 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. VA does not have 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. 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) AR20180012684 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1