BOARD DATE: 17 April 2020 DOCKET NUMBER: AR20180015724 APPLICANT REQUESTS: a medical separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * 2 Letters 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 he was in a Bradley Fighting Vehicle training accident in November 2004. He was injured and sent to his home unit as rear detachment support. On 7 April 2006, he was medically discharged after serving 18 months on active duty. He currently has a 70 percent disability rating for his service connected injury. 3. The applicant was ordered to active duty in support of Operation Enduring Freedom. He served on active duty from 10 October 2004 through 7 April 2006. He was released from active duty due to completion of required active service. 4. On 20 September 2006, the applicant was honorably discharged from the Army National Guard due to expiration of service obligation. 5. The applicant medical records were not available for review and the available record is void of documentation nor does he provide evidence showing he was treated for an injury or an illness that warranted her entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a MEB or a physical evaluation board (PEB). 6. The applicant provides documentation from VA showing he has a combined service- connected disability rating of 70 percent. 7. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: The applicant indicates that he was injured in a training accident involving a Bradley Fighting Vehicle while he was ordered to Active Duty from the California Army Reserve National Guard (ARNG) in support of Operation Enduring Freedom. The accident occurred in November 2004. Following the training accident the applicant was returned to his home station rear detachment where he completed his mobilization. The applicant’s DD214 indicates that he was honorably released from Active Duty (REFRAD) on 7 April 2006 IAW AR 635-200, Chapter 4 for reason of completion of required active service. The applicant was subsequently honorably discharged from the California ARNG on 20 September 2006. The AHLTA record contains only two entries in which the applicant was seen to document the accident that occurred in November 2004. He had reportedly been diagnosed by a civilian physician with herniated discs at the L3-4, L4-5, and L5-S1 level by MRI. Those notes are not available for review. The note in AHLTA does state that the applicant indicated that “his legs went out while doing PT” in November 2004, and there is no mention of an accident involving a Bradley Fighting Vehicle. JLV records indicate that the applicant has a current combined service connected rating of 80%. However, the conditions for which the applicant received this rating are not identified in JLV, AHLTA, or the records submitted by the applicant. The records do not contain any permanent or temporary profiles to indicate exactly what type or extent of injuries were sustained by the applicant at the time of the reported accident in November 2004. Although the applicant currently has a combined service connected rating of 80% from the VA, this does not necessarily correlate with any specific illness or injury that would have failed to meet retention standards IAW AR 40-501, Chapter 3 at the time the applicant separated from the Army. Therefore, it is the opinion of the Agency Medical Advisor, based on the available information, that referral of the applicant’s record to the Disability Evaluation System (DES) for consideration of military medical retirement is not indicated at this time. 8. A VA finding of service connection does not necessarily result in a military medical disability rating. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for disabilities felt to be unsuiting. The DOD, however, only compensates for conditions it determines to be unfitting. Indications of an unfitting condition while on active duty are evidenced by: 1) a permanent physical profile for physical or psychological impairment; 2) a diagnosis of a medical or psychiatric condition that failed medical retention standards IAW AR 40- 501, Chapter 3; 3) a diagnosis of a disabling medical or psychiatric condition that renders an applicant unable to perform the duties required of his/her MOS or military grade; and 4) medical examination that warranted entry into the disability evaluation system. 9. 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. 9. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (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. 9. 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. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, a medical review, and regulatory guidance were carefully considered. Evidence of record shows the applicant met retention standards during his period of active duty service and separated following completion of required active service. The record also shows his service records did not contain any permanent or temporary profiles to indicate exactly what type or extent of injuries were sustained by the applicant at the time of the reported accident in November 2004. Based upon a preponderance of the evidence to include the opinion of the medical advisory official, the Board determined there is insufficient evidence that shows a medical separation was warranted during his period of active 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, 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. The 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) AR20180015724 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1