ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20180015277 APPLICANT REQUESTS: a review of all medical conditions listed at the time of her discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 4 Department of Veterans Affairs (VA0 Forms 3288 (Request for and consent of Release of Information from Claimant’s Record) * 3 DD Forms 2870 (Authorization for Disclosure of Medical or Dental Information) * Letter from VA 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 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 she has been determined by VA to permanently and totally disable since her discharge. She was not fit for duty for several conditions especially mentally. All of her chronic and severe conditions were not reviewed accurately and she is asking for a second review. 3. The applicant enlisted in the Army 12 August 1997. 4. The applicant was issued a permanent P3 profile which was approved on 9 August 1999, for chronic bilateral foot pain with normal bone scan. 5. On 18 October 1999, a Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) Proceedings found based on a thorough review of the most recent physical profile and all other pertinent records and repots, recommended the applicant be retained in her current primary MOS. 6. The applicant’s medical records are not available for the Board’s review and were not provided by the applicant. 7. On 20 February 2009, the applicant was honorably discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) due to “Disability, Severance Pay, Non-Combat Related.” 8. On 7 June 2019, the Army Review Board Agency (ARBA), medical advisor concluded, based on the available documentation, the applicant’s medical conditions were reviewed in a proper and equitable manner. While she was in treatment for behavioral health conditions, her symptoms were well managed and she had no occupational impairment. The PEB appropriately determined her behavioral health conditions were medically acceptable and met retention standards. She was separated due to a physical condition that did not meet retention standards. There is no evidence to support the applicant’s contention that at the time of discharge from active duty, she was suffering from militarily unfitting PTSD. In addition, there is no evidence to support her childhood related PTSD was aggravated by military service. It is acknowledged that the applicant has been rated as 50 percent service-connected by the VA for PTSD. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. It is important to understand that the VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DoD). In essence, VA will compensate for all disabilities felt to be unsuiting. DoD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting and line of duty. A copy of the complete medical advisory was provided to the Board for their review and consideration. 19. On 12 June 2019, the applicant was provided a copy of the medical advisory for comment or rebuttal. She did not respond. 10. 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. 11. 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. 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. 12. 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. BOARD DISCUSSION: After review of the application and all evidence, including the medical advisory opinion, the Board found insufficient evidence to grant relief. The Board agreed that the applicant was medically evaluated during her period of service and that her behavioral health conditions were not unfitting at time of discharge: the applicant’s medical service records do not indicate that her childhood-related PTSD, was severe enough to receive a permanent 3 Profile that would have required medical boarding; therefore at the time of discharge, PTSD was not an unfitting condition. The Board agreed that the applicant’s disability discharge at 20% was proper and fitting and there is insufficient evidence in the applicant’s medical and service records of a medical disability or condition that would support a change in narrative reason to “disability retirement”. The VA properly provided her support and benefits for service connected medical concerns post-service. 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, 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 Army Board for Correction of Military Records (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 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 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) AR20180015277 4 1