ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20180016288 APPLICANT REQUESTS: his honorable discharge (HD) due to “completion of Required Service” be change to a medical retirement and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a second period of Foreign Service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * 2 DD Forms 149 (Application for Correction of Military Record) * DD Form 214 * Medical document * Letter from Department of Veterans Affairs (VA) * Certificate of Training * Certificate of Health Care Provider for Employee’s Serious Health Condition * Welcome Home Letter * Page 2 of DA Form 638 (Recommendation for Award) 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 he was involved in an improvised explosive device IED) blast and suffered hearing loss, traumatic brain injury (TBI), post-traumatic-stress disorder (PTSD), and migraines. He has lost his job due to migraines and PTSD. Only one combat tour is listed on his DD Form 214; however, he served two tours in Iraq. 3. The applicant’s medical records are not available for the board’s review and the available record is void of evidence showing he had a condition requiring referral to the medical evaluation board (MEB) during his tour on active duty. 4. On 16 February 2007, the applicant was honorably released from active duty due to completion of required active service and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement). He completed 4 years and 6 days of net active service this period. His DD Form 214 shows in: a. item 12f (Foreign Service), he served 11 months and 20 days; b. item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): * Army Commendation Medal * Meritorious Unit Commendation Medal * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Service Medal * Combat Action Badge * Army Service Ribbon * Overseas Service Ribbon * Parachutist Badge c. item 18 (Remarks), "SERVICE IN IRAQ 20051126 - 20061115." 5. The Defense Finance and Accounting Service (DFAS) confirmed he received hazardous fire, imminent danger pay, and the combat zone tax exclusion for service in Kuwait for the period 1 November 2003 through 31 March 2004. 6. The applicant provides a Consultation Report, dated 7 June 2006, which shows he was seen at audiology in reference to an IED Blast. 7. On 26 June 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The medical advisor concluded there is no evidence to support the applicant’s contention that at the time of discharge from active duty he was suffering from militarily unfitting medical condition. It is acknowledged the applicant has been diagnosed with and treated for multiple conditions at the VA and has a service- connected disability of 70 percent for PTSD and 10 percent for TBI. 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, the 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. 8. On 1 July 2019, the applicant was provided a copy of the advisory opinion for comment or rebuttal. He did not respond. 9. Army Regulation 635-40 (Standards of Medical Fitness) establishes the Army Disability Evaluation System (DES) 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. 10. 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. 11. 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. 12. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and an advisory opinion. The Board considered the applicant’s statement, his service and DFAS records, the available medical records and the applicant’s s deployments. The Board considered the available medical records, his VA ratings and the conclusion of the medical advising official. The Board concurred with the advising official and found insufficient evidence to support the applicant having a condition or conditions in-service that warranted processing through the Disability Evaluation System. The Board did find that the applicant had received special compensation for service in Kuwait and should have the period of that deployment reflected on his DD Form 214. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted.? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 16 February 2007 to add in item 18 (Remarks) – “Service in Kuwait 20031101 - 20040331 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to medical retirement. 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. ADMINISTRATIVE NOTE(S): Not Applicable ? 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. 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. 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. 6. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. Chapter 2 states, in pertinent part: a. the total amount of foreign service completed during the period of active service covered by the DD Form 214 will be entered as "YYYY MM DD" in item 12f of the form; and b. for item 18, for an active duty Soldier deployed with his or her unit during their continuous period of active service, the statement "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)" will be entered. ABCMR Record of Proceedings (cont) AR20180016288 4 1