ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  26 July 2019

	DOCKET NUMBER:  AR20180016350


APPLICANT REQUESTS: a Medical Evaluation Board (MEB) for a potential retroactive medical retirement and back pay if a medical retirement is warranted.  The applicant also requests a personal appearance before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter from Department of Veterans Affairs (VA)
* Orders
* 6 memorandums
* Medical records

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 released from stop-loss and discharged on                   21 July 2004, while still recovering from spinal surgery due to injuries received in Iraq.  He was adjudicated 40 percent disabled by VA during discharged, but was not medically boarded by the Army; however, he should have been medically boarded.  

3.  The applicant entered active duty on 22 May 2000.  He completed service in support of Operation Iraqi Freedom from 22 March 2003 to 22 January 2004.

4.  On 16 March 2004, the applicant was issued a temporary P3 profile due to degenerative disc lower back.  The profile was to continue through 16 June 2004.

5.  On 6 May 2004, the applicant underwent left sided L5-S1 microdiskectomy and microscope dissection for a diagnosis of Herniated Nucleus Pulposus at L5-S1 with radiculopathy.

6.  The applicant’s record is void of documentation showing he was referred to a MEB.

7.  On 21 July 2004, the applicant was honorably released from active duty due to miscellaneous/general reasons.  He was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).  He completed 4 years and 2 months of net active service this period.  He was awarded or authorized the following:

* Bronze Star Medal
* Army Achievement Medal (2nd Award)
* National Defense Service Medal
* Global War on Terrorism Expeditionary Medal 
* Army Service Ribbon
* Overseas Service Ribbon
* Parachutist Badge
* Ranger Tab

8. On 22 May 2019, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion.  The medical advisor, states in part, based on the available medical record, the applicant did not meet retention standards due to herniation of nucleus pulposus.  He underwent surgery for this condition, however he continued to have pain and radiation to the left posterior knee even after undergoing physical therapy.  If the applicant had remained on Active Duty the advisor expects the applicant would have been referred for a Medical Evaluation Board.  The advisor opines that, based on the information currently available, a referral of the applicant’s record to the Integrated Disability Evaluation System (IDES) for consideration of military medical retirement is indicated at this time.  A copy of the complete medical advisory was provided to the Board for their review and consideration.

9.  On 20 June 2019, the applicant responded and concurred with the medical advisory opinion.

10.  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.  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


11.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 

12.  Defense Directive-Type Memorandum (DTM 11-015, 19 December 2011, provides for the integrated DES (IDES).  The IDES is the joint Department of Defense (DOD) - VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a service-connected disability

13.  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:

1.  The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the medical advisory opinion.  The Board considered the applicant’s statement, his deployment, the temporary profile he was issued and the reason for his separation.  The Board reviewed the conclusion of the advising official that found the applicant failed medical retention standards and had he remained on active duty would have been referred to an MEB.  The Board determined, based on a preponderance of the evidence, that an injustice had occurred and that referral to the disability evaluation system was warranted.
     The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.
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 referring his records to the Office of The Surgeon General for review to determine if the applicant had a condition that failed medical retention standards at the time of separation.  

   a.  If a review by the Office of The Surgeon General determines the evidence supports such a condition, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to his discharge. 
   
   b.  In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB.  All required reviews and approvals will be made subsequent to completion of the formal PEB.  

   c.  Should a determination be made that the applicant should be separated or retired for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date, with entitlement to all pay and allowances and/or retired pay. 









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 any relief without benefit of the review described above.
 


	 
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 (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.  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.

3.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his or her office, grade, rank or rating.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 

4.  Defense Directive-Type Memorandum (DTM 11-015, 19 December 2011, provides for the integrated DES (IDES).  The IDES is the joint Department of Defense (DOD) - VA process by which DOD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DOD and VA determine appropriate benefits for Service members who are separated or retired for a service-connected disability

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.


ABCMR Record of Proceedings (cont)	 AR20180016350
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