ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 January 2020 DOCKET NUMBER: AR20180014864 APPLICANT REQUESTS: physical disability retirement in lieu of physical disability discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * multiple pages of service medical records * Medical Evaluation Board (MEB) Narrative Summary (NARSUM) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (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 his disability discharge should be reevaluated as a disability retirement given the chronic history of his disorder along with its effect on daily living. 3. The applicant enlisted in the Regular Army on 18 March 1998. 4. Records indicate he served in Kuwait on the following occasions: * from 23 March 2003 through 9 June 2003 * from7 July 2008 through 10 July 2009 * from 7 October 2010 through 16 November 2010 5. The applicant provided an undated MEB NARSUM, which states in pertinent part: a. The applicant developed bilateral thigh burning pain with running in 2007 which gradually became worse, resulting in a medical evacuation from Kuwait in November 2010 and eventual muscle pain symptoms began involving all the large muscles of his body. He was found to have chronically elevated creatinine kinase (CK) without serious clinical symptoms except exercise intolerance. His history and testing were most consistent with idiopathic hyper-CK-emia. b. He met the criteria for referral to a MEB based on myopathy that interfered with successful performance of duty. His idiopathic hyper-CK-emia rendered him unable to perform strenuous physical activities required of a Soldier and would not change over the next 5 years, but she should be able to perform the usual activities of daily life. His symptoms were exacerbated by physical activity and relieved with rest. c. His diagnoses of lumbago, obstructive sleep apnea, bilateral hallux valgus (bunions) and scar were not disqualifying and were deemed to meet retention standards. 6. His records contain a DA Form 199 (Physical Evaluation Board (PEB) Proceedings), which shows: * he underwent a PEB on 25 January 2012, where he was deemed unfit for the condition of idiopathic hyper-CK-emia because the condition prevented him from performing strenuous physical activities including many of the common military functional activities required of all Soldiers * his diagnoses of lumbago, obstructive sleep apnea, bilateral hallux valgus and scar were considered, but were determined to be not unfitting * the PEB recommended a combined disability rating of 20 percent for his unfitting condition and that he be separated with severance pay * the applicant concurred with the PEB findings on 1 February 2012, waived his right to a formal hearing of his case, and did not request reconsideration of his VA ratings 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged on 31 May 2012 due to disability with severance pay, non- combat, after 14 years, 2 months, and 13 days of net active service. 8. On 12 November 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion, which states: a. The applicant’s military medical record is notable for the following: * he developed bilateral thigh burning pain with running in 2007 and the condition continued to gradually worsen over the next 2 1/2 years, resulting in a medical evacuation from Kuwait in November 2010 * multiple laboratory measurements of his CK drawn over the course of 3 years demonstrated mild elevations * he had a muscle biopsy completed showing only rare atrophic fibers * he had a neurology consultation completed along with an electromyography and nerve conduction studies, both of which were normal * the neurologist determined on 17 May 2011, the applicant’s clinical history was most consistent with idiopathic hyper-CK-emia * upon physical examination of his muscles, it was noted he had tenderness of the lumbar para-spinal muscles only and his muscle strength was 5/5 bilateral; his neurovascular exam was also normal * overall, it was determined that any prolonged physical activity, to include physical fitness training, would require frequent rest periods before functionality would return; he was unable to ride in a military vehicle for 12 hours nor could he wear his body armor and load bearing equipment or move 40 pounds any distance * his immediate commander stated on a DA Form 7652 (Disability Evaluation System (DES) Commander’s Performance and Functional Statement) the applicant could not perform any of the required physical functional and physical fitness activities * it was determined his condition would not change over the following 5 years and his inability to perform physical activity would remain the same, however with removal from the required physical activities his prognosis was benign and he would be able to perform the usual activities of daily living * it was also determined he met the criteria for a MEB based on myopathy that interfered with successful performance of duty * the applicant did not have any other disqualifying diagnosis based on his listed examinations from the MEB or the VA examiners b. Based on the available medical record, the applicant did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). It is the opinion of the ARBA medical advisor that the outcome of the IDES process was accurate and appropriate. c. The level of impairment at the time of discharge is reflective of the applicant’s limitations within the Army, however there is no indication his medical diagnosis impaired his activities of daily living. Additionally, no new evidence was presented to warrant reconsideration for a medical retirement. 9. The applicant was provided a copy of the advisory opinion and given an opportunity to submit comments. On 29 November 2019, he rebutted the advisory opinion, stating the following: a. He is asking the Board to consider the progression of medical evidence from October 2000 through May 2011, where his symptoms progressed from thigh burning during strenuous physical activity to burning simply from chewing food while eating. He would also like to Board to consider the progression of symptoms that includes multiple joint pain, which isn’t considered a symptom of idiopathic hyper-CK-emia, nor are rare atrophic fibers that were confirmed by his muscle biopsy. b. He has been granted a service-connected disability from the VA for fibromyalgia that better describes his overall health at the time of his MEB than hyper-CK-emia, considering joints are not affected in such a diagnosis. He would also like the Board to take into consideration that his health issues did not start until after his first deployment, where they were exposed to burning oil fields. There were also exposed to nuclear- biological-chemical (NBC) attacks that required them to put on full protective gear for hours on multiple days, which can be confirmed by a review of his Post Deployment Health Assessment. 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, the nature of his condition, his MEB and PEB proceedings and the reason for his separation. The Board considered the review and conclusions of the medical advising official and the applicant’s rebuttal. The Board found insufficient evidence of conditions not previously considered or conditions not reflective of his limitations within the Army at the time of his separation due to disability with severance pay. 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 : : : 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the 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. 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) AR20180014864 5 1