ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 27 September 2019 DOCKET NUMBER: AR20180016866 APPLICANT REQUESTS: physical disability retirement in lieu of honorable release from active duty due to completion of required active service. 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) 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: a. He was diagnosed with post-traumatic stress disorder (PTSD) while in theater and was released from active duty under normal conditions upon his return from Afghanistan. b. He believes a medical evaluation should have transpired because he was unfit for duty. He was not previously aware he could request consideration by the Board. 3. The applicant enlisted in the South Carolina (SC) Army National Guard (ARNG) on 17 December 2004. 4. State of South Carolina Military Department, office of the adjutant General Orders 159-192, dated 8 June 2010, ordered him to active duty in support of Operation Enduring Freedom effective 6 July 2010. 5. His DD Form 214 shows he served in Afghanistan from 20 August 2010 through 5 July 2011. He was honorably released from active duty and transferred back to the SCARNG on 16 August 2011, after 1 year, 1 month, and 11 days of net active service this period, due to the completion of required active service. 6. His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he was honorably discharged from the SCARNG on 16 December 2011, after 7 years of service, due to the expiration of his active status commitment in the Selected Reserve. 7. His available service records do not show: * he was issued a permanent physical profile rating * he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his military occupational specialty and/or grade or rendered him unfit for military service * he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) * he was diagnosed with a condition that failed retention standards and/or was unfitting 8. On 16 July 2018, the Army Review Boards Agency (ARBA) medical advisor/psychologist provided an advisory opinion, which states: a. A review of the applicant’s electronic military health records indicate he had two blast exposures while deployed to Afghanistan, one while dismounted in September 2010 and in the second his vehicle was struck by a large improvised explosive device (IED) in October 2010 and two of the Soldiers in the vehicle were severely injured, requiring evacuation to the Continental U.S. He was evaluated in January 2011 due to persistent headaches subsequent to the blast exposures. b. On 4 January 2011,he was seen by a psychologist due to depressed mood, where he reported a history of dysthymia (persistent mild depression) since the age of 10 or 11 and had a trial of Zoloft (antidepressant). He reported depressive symptoms increased after the IED blasts and his injured friends were sent home. He was also seen by a psychiatrist for depressed mood and started on an SSRI. On 6 February 2011, he was seen for a medication refill by a separate provider and his diagnosis was amended to include PTSD in addition to depression /dysthymia, with no duty limitations. His treating providers’ subsequent sessions maintained the diagnoses of depression and anxiety not otherwise specified with no duty limitations and there are no further references to a PTSD diagnosis separate from the one encounter. During his post- deployment screenings on 9 July 2011 and at the demobilization site, the applicant indicated his medications effectively managed his depression, anxiety, and headaches. c. A review of the applicant’s electronic Department of Veterans Affairs (VA) records indicates he has a service-connected disability rating of 100 percent for PTSD and receives treatment through the VA for PTSD and major depressive disorder. These facts alone does not automatically mean that military medical disability retirement is warranted. The VA operates under different rules, laws, and regulations when assigning disability percentages. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. d. The applicant had no duty limitations at the time of his release from active duty. He was evaluated in theater and at Camp Shelby and found in both instances to meet retention standards. His records indicate he met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and that a medical discharge was not warranted. A copy of the complete medical advisory was provided to the Board for their review and consideration. 9. The applicant was provided a copy of the advisory opinion on 9 September 2019 and given an opportunity to submit comments, but he did not respond. 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 to include deployment, his exposure to traumatic events during deployment, the nature of his injuries and the reason for his separation from active duty and the ARNG. The Board considered the review and conclusions of the medical advising official, the medical evidence in his records, the rating assigned him by the VA and the treatment the continues to receive. The Board found that his continuing treatment and ratings assigned by the VA indicated he may have had a condition that warranted further evaluation prior to his separation. Based on a preponderance of evidence, the Board determined that the applicant should be evaluated for a medical separation or retirement. 2. After reviewing the application and all supporting documents, the Board found that 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:: a. If a review by the Office of The Surgeon General determines the evidence supports further evaluation, 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 back 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. 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 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) AR20180016866 4 1