BOARD DATE: 26 June 2020 DOCKET NUMBER: AR20190000930 APPLICANT REQUESTS: * physical disability retirement * exception to policy (ETP) for retention of his non-prior service enlistment bonus (NPSEB) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * Standard Form 600 (Chronological Record of Medical Care) * nine DA Forms 3349 (Physical Profile) * multiple additional service medical records * psychiatrist’s letter * U.S. Army Human Resource Command (USAHRC) discharge orders 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: a. He requests medical retirement for general anxiety disorder associated with gastro-intestinal issues following his deployment to Afghanistan between May 2012 – May 2013. While in Afghanistan, he contracted severe gastro-intestinal issues and started having anxiety over them after an embarrassing issued going to the bathroom. His anxiety and intestinal issues caused him to seek out medical help in Afghanistan and continued once returning home. b. Once home, he was working through the Department of Veterans Affairs (VA) system when he failed multiple Army Physical Fitness Tests (APFT) and could barely attend weekend drill. He eventually brought up his issues to the military doctors and he was put on physical profiles for over 2 years until he finished his service contract. He believes he should have been medically boarded out instead of put on physical profiles. c. He is also requesting an ETP to retain his NPSEB due to a discrepancy with two consecutive failed record APFTs. Upon returning from a year-long deployment in support of Operation Enduring Freedom in Kandahar, Afghanistan in May 2013, he was suffering with severe anxiety disorder as well as related gastrointestinal issues. Due to the nature of his illness, he began seeking treatment with both the VA as well as civilian doctors. His medial team included a general physician, psychologist, psychiatrist, and a gastrointestinal specialist. d. It was a trial and error period for over 3 years to find the right combination and dosages of medications to treat both parts of his medical issues without adverse reactions. The combination of severe anxiety and gastrointestinal issues along with the adverse reactions of the medications provided him many challenges in daily life, both civilian and military. e. Due to the challenges he was facing, he began seeking additional support with the Maryland Army National Guard (MDARNG), Maryland State Medical Detachment in Reisterstown, MD. It was determined during his visit to Colonel, Dr. W____ H____ that he was to be put on a medical profile for the remainder of his commitment to the MDARNG. If the Board has any questions, Dr. H____ is willing and able to provide verification and treatment records on his behalf. 3. The applicant’s DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows he enlisted in the ARNG on 30 November 2010. 4. His National Guard Bureau (NGB) Form 600-7-1-R-E (Annex E to DD Form 4 – NPSEB Addendum), dated 30 November 2010 shows: * he was enlisting in the ARNG in the critical skills military occupational specialty (MOS) 15U (CH 47 Helicopter Repairman) for a NPSEB in the amount of $5,000.00 * he would serve a period of no less than 6 years in the Selected Reserve with a total military service obligation of 8 years * he understood his bonus eligibility may be suspended if he became flagged (suspension of favorable personnel action) for adverse action or for repeat non- consecutive APFT failure or non-consecutive failure to meet body fat standards within a 12-month period * he understood no bonus would be paid during the time of suspension and that reinstatement of bonus eligibility was not guaranteed * he understood failure to meet reinstatement criteria in a capacity for which previously contracted shall result in termination of the incentive and recoupment, as appropriate * he understood his bonus eligibility may be terminated with recoupment for two consecutive records APFT failures or two consecutive failures to meet body fat standards 5. MDARNG Orders 305-004, dated 1 November 2011, show the applicant was awarded the primary MOS 15U effective 25 October 2011. 6. A DA Form 3349, dated 17 January 2012, shows the applicant had a physical profile rating of “1” in all categories. He incurred a shoulder sports injury in the summer of 2008 which resulted in shoulder instability being surgically corrected in October 2008. The applicant was released by the Johns Hopkins surgeon and the NGB surgeon with no physical limitations in November 2010 subsequent to the shoulder dislocation and corrective surgery. 7. The applicant was ordered to active duty in support of Operation Enduring Freedom (OEF) on 24 May 2012 with service in Afghanistan from 3 August 2012 through 5 May 2013. He was honorably released from active duty on 17 June 2013 and transferred back to his MDARNG unit after 1 years and 26 days net active service this period due to the completion of required active service. 8. A DA Form 4037 (Enlisted Record Brief (ERB)) shows the applicant was flagged for suspension of favorable actions effective 7 December 2013 with a flag code of J for APFT failure. The ERB also shows a second APFT date of April 2014, with a failing score of 175. 9. The applicant provided a Standard Form 600, dated 12 July (presumably 2014) which appears to be written in first person by the applicant and not a medical provider. It states: a. In Afghanistan May 2012 – May 2013, I [the applicant] had stomach issues with bad diarrhea and constant use of the bathroom. One night I woke up and had an urge to use the bathroom. On the way to the bathroom I had a vagal event [sudden drop in heart rate and blood pressure leading to fainting, often in reaction to a stressful trigger], got dizzy, and fell into a water pipe. b. For the rest of the deployment until now (presumably after the deployment) the applicant recounts he gets anxiety with bathroom issues. He has been going to the VA in Baltimore and Glenn Burnie for help. He can’t do normal things anymore without them causing him fear. The bathroom gives him anxiety, causing his stomach to go out of whack. He is currently on medication from the VA. His commander wanted him to talk with the doctor about a permanent physical profile and options for help. c. The bottom of the form appears to have an annotation from a medical provider, Dr. P____ S____, regarding symptoms of diarrhea and anxiety and referencing a temporary electronic physical profile. 9. A DA Form 3349, dated 12 July 2014, shows: * the applicant had what sounded like the medical conditions of irritable bowel syndrome (IBS) and anxiety * he was given a temporary physical profile rating of “3” in the categories of P- physical capacity or stamina, U – upper extremities and L- lower extremities and “1” in the remaining 3 categories * the temporary profile was due to expire on 10 October 2014 * the physical profile limited the applicant from performing 6 of the 10 functional activities and prevented him from completing the APFT * he was expected to be fully mission capable by 10 October 2014 * the form is signed by Dr. P____ S____ 10. A DA Form 3349, dated 13 August 2014, shows: * the applicant’s medical conditions were anxiety and IBS * he was given a temporary physical profile rating of “3” in the above listed categories as well as in S –psychiatric and “1” in the remaining 2 categories * the temporary profile was due to expire on 11 November 2014 * the physical profile limited the applicant from performing 6 of the 10 functional activities and prevented him from completing the APFT * it was undetermined when the applicant would be fully mission capable as at the time of the profiling his psychiatric medication was being adjusted * the form is signed by Dr. W____ H____ 11. A DA Form 3349, dated 12 November 2014, shows: * the applicant’s medical conditions were anxiety and IBS * he was given a temporary physical profile rating of “3” in S –psychiatric and “1” in the remaining 5 categories * the temporary profile was due to expire on 10 February 2015 * the physical profile limited the applicant from performing 6 of the 10 functional activities and prevented him from completing the APFT * it does not indicate whether the applicant met retention standards or required an MEB * it was undetermined when the applicant would be fully mission capable as at the time of the profiling his medication was being adjusted * the form is signed by Dr. W____ H____ 12. A DA Form 3349, dated 20 May 2015, shows: * the applicant’s medical conditions were anxiety and IBS * he was given a temporary physical profile rating of “3” in S –psychiatric and “1” in the remaining 5 categories * the temporary profile was due to expire on 18 August 2015 * the physical profile limited the applicant from performing 6 of the 10 functional activities and prevented him from completing the APFT * it does not indicate whether the applicant met retention standards or required an MEB * it was undetermined when the applicant would be fully mission capable as the time of the profiling as his medication continued to be adjusted * the form is signed by Dr. W____ H____ 13. A DA Form 3349, dated 24 August 2015, shows: * the applicant’s medical conditions were anxiety and IBS * he was given a temporary physical profile rating of “3” in S –psychiatric, “2” in P- physical capacity or stamina and “1” in the remaining 4 categories * the temporary profile was due to expire on 22 November 2015 * the physical profile limited the applicant from performing 2 of the 10 functional activities and prevented him from completing the APFT * it does not indicate whether the applicant met retention standards or required an MEB * the applicant was expected to be fully mission capable on 22 November 2015 * the form is signed by Dr. W____ F____ 14. A DA Form 3349, dated 25 November 2015, shows: * the applicant’s medical conditions were anxiety and IBS * he was given a temporary physical profile rating of “3” in S –psychiatric, “2” in P- physical capacity or stamina and “1” in the remaining 4 categories * the temporary profile was due to expire on 24 January 2016 * the physical profile limited the applicant from performing 2 of the 10 functional activities and prevented him from completing the APFT * it does not indicate whether the applicant met retention standards or required an MEB * the applicant was expected to be fully mission capable on 24 January 2016 * the form is signed by Dr. W____ F____ 15. A DA Form 3349, dated 6 January 2016, shows: * the applicant’s medical conditions were anxiety and IBS * he was given a temporary physical profile rating of “2” in S –psychiatric, “2” in P- physical capacity or stamina and “1” in the remaining 4 categories * the temporary profile was due to expire on 5 April 2016 * the physical profile limited the applicant from performing 2 of the 10 functional activities and prevented him from completing the APFT * it does not indicate whether the applicant met retention standards or required an MEB * the applicant was expected to be fully mission capable on 5 April 2016 * the form is signed by Dr. W____ H____ 16. A DA Form 3349, dated 25 May 2016, shows: * the applicant’s medical conditions were anxiety and IBS * he was given a temporary physical profile rating of “2” in S –psychiatric, and “1” in the remaining 5 categories * the temporary profile was due to expire on 23 August 2016 * the physical profile limited the applicant from performing 2 of the 10 functional activities and prevented him from completing the APFT * it does not indicate whether the applicant met retention standards or required an MEB * the applicant was expected to be fully mission capable on 23 August 2016 * the form is signed by Dr. W____ H____ 17. The applicant’s NGB Form 22 (National Guard Report of Separation and Record of Service) shows the applicant was honorably discharged from the MDARNG effective 19 November 2016 due to the completion of 6 years Ready Reserve obligation and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). 18. The applicant’s available service and medical records from this period 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 MOS 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 19. A letter from Dr. L____ G____, a psychiatrist at Columbia Counseling Center, dated 7 June 2018 states: a. The applicant was informed in a MDARNG memorandum, dated 2 February 2018 that there was a discrepancy with his NPSEB because he failed two consecutive record APFTs. The memorandum also stated the applicant might be eligible for an ETP, which should include a statement from a qualified medical professional regarding his ability to perform the APFT during the time of the failures. The psychiatrist reviewed the APFT documents showing the applicant failed the APFT on 7 December 2013 and 5 April 2014. b. An AHLTA (electronic service medical record) note dated 25 September 2012, documents the applicant was seen with a complaint of abdominal pain and diarrhea for 3 days. He complained of a cramping pain located in the lower portion of his abdomen and stated the pain comes and goes in waves. The applicant was unsure of what makes the pain better or worse, but says the pain goes away on its own. The applicant stated he had at least one episode of diarrhea every 30 minutes for the past day and complained of slight nausea that accompanied the abdominal pain. He also complained of cold sweats that occurred at night and was diagnosed with diarrhea of presumed infectious origin and treated symptomatically. c. Another AHLTA note, dated 30 March 2013, documents the applicant was seen for treatment of anxiety and gastro-intestinal distress. The applicant reported an increase in general anxiety in recent months (such as worry when his wife is sick and other non-specific situational worries). The notes show the applicant was eager to re- deploy back home, had difficulty sleeping over the last month, and had been working nights the last 2 weeks. He indicated he had been using melatonin for a few weeks with little success. d. The 30 March 2013 notes further show he applicant reported an incident of rushing to use the latrine after feeling gastro-intestinal (GI) distress. However, on his way to the latrine entrance someone pushed the door open at the same time and the applicant apparently fainted and broke a water pipe when he landed on the A/C unit outside. He said many people came out and he was quite embarrassed. He denied loss of consciousness, but stated he felt light-headed and sort of watched the whole thing occur. e. In a continuation of the March 2013 notes, the applicant indicated over- sensitivity to any “gurgle” in his intestines and gets preoccupied with thoughts about whether he will have to use the bathroom urgently and not be able to make it or faint, causing further embarrassment. He stated he used to be a pilot before becoming a mechanic in the Army and he never had this problem before. He expressed low morale in his unit and a strong desire to redeploy from Afghanistan, which may contribute to his anxious mood and poor sleep. He was sleeping about 4-5 hours per day, but was returning to the day shift after a 2 day reset. He was diagnosed with an anxiety disorder not otherwise specified and was again treated symptomatically. f. It is clear from these two AHLTA notes of 25 September 2012 and 30 March 2013 that the applicant’s anxiety and fears of GI distress predate his APFT failures on 7 December 2013 and 5 April 2014 and are the definite reasons for the APFT failures. His GI problems persisted after his APFT failures. g. The psychiatrist writing the letter initially met with the applicant on 25 March 2015 to address his anxiety, which was manifested in GI symptoms. His GI symptoms had an enormously negative effect on his ability to fulfill the requirements of being a member of the military and also as a commercial pilot and his civilian job as an airport manager. The psychiatrist diagnosed him with generalized anxiety disorder manifested by his GI symptoms and prescribed him an anti-depressant and anti-anxiety medications. h. He asked the applicant to specifically list the limitations he had secondary to his anxiety disorder for his job in the military as a CH-47 mechanic, the applicant listed the following: * unable to work on the top part of the aircraft due to medication * non-deployable due to medication * unable to ride in convoy or on aircraft for long periods of time due to no bathroom * unable to run for APFT due to anxiety and bathroom issues * unable to reenlist due to anxiety and bathroom issues * on a permanent physical profile due to medication and issues * physical profile doesn’t allow him to carry a weapon i. The applicant markedly improved on his prescribed medications, but his GI symptoms still have a definite impact on his social and industrial capabilities. In summary, he fully supports the applicant’s request for an ETP for retention of his NPSEB for failing two consecutive APFTs because of his serious GI symptoms caused by his generalized anxiety disorder. 20. Neither the February 2018 memorandum from the MDARNG informing him of the discrepancy with his NPSEB due to his APFT failures, nor the applicant’s request for ETP are in his available records for review. 21. An NGB memorandum, dated 3 July 2018 states: a. The applicant’s request for ETP to retain the $5,000.00 NPSEB was disapproved for the discrepancy of failing two consecutive record APFTs, which violates Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program), paragraph 10-6b. b. This discrepancy violated Department of Defense Instructions and the ARNG did not have the authority to approve this request for ETP. The State Incentive manager will terminate the incentive with recoupment effective the date of the second APFT failure. c. The applicant was advised he could file a claim with the ABCMR if he believed an error or injustice still existed. 22. USAHRC Orders D-12-832860, dated 4 December 2018 show the applicant was honorably discharged from the USAR Control Group (Reinforcement) effective 4 December 2018. 23. 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 is requesting consideration for military medical retirement. He states he was diagnosed with generalized anxiety disorder related to gastrointestinal issues that began while he was deployed in Afghanistan. The record indicates that he had been on multiple temporary duty-limiting profiles following his return from Afghanistan due to anxiety and irritable bowel syndrome. IAW AR 40- 501, Chapter 3, Soldiers who have a continuous duty-limiting profile that restricts the performance of any of the functional activities in block 4 of the DA3349 or prohibit the completion of an aerobic event for the APFT for more than 365 days have met the administrative medical retention determination point, and require referral to the DES. The applicant exceeded 365 days on a duty limiting profile for the noted conditions. At the time of the APFT failure, and based on the pattern of profiling for the stated medical conditions, it can be presumed that those conditions existed at the time the applicant was administered the APFT. The failed APFT should therefore not reflect negatively on the applicant. Based on this information, it is the opinion of the Agency Medical Advisor that this case be referred to the MEB to determine if the stated conditions would have met retention standards IAW AR 40-501, Chapter 3 at the time of his separation. If not, then the case should further be referred to the PEB to determine if the applicant was fit or unfit, and if unfit have the appropriate Army disability ratings applied. It is further recommended that his final discharge narrative be dependent on the result of the IDES process. 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 deployments, the terms of his incentive contract, his APFT failures and his discharge. The Board considered his recurring temporary physical profiles and the statements regarding support for an exception to policy for his incentive regardless of the APFT failures. The Board considered the review and conclusions of the medical advising official and concurred with the official’s recommendation. Based on a preponderance of evidence, the Board found sufficient evidence to mitigate the applicant’s APFT failures and determined that the applicant should be entitled to the Non-prior Service Enlistment Bonus. The Board further determined that the applicant should be afforded the opportunity for consideration of his medical conditions by the Disability Evaluation Process. 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: a. Showing an approved Exception to Policy for the applicant’s retention of his contracted Non-Prior Service Enlistment Bonus; b. Paying the applicant monies owed him as a result of the approved ETP; c. Referring his records to the Office of The Surgeon General for review of his conditions as they existed at the time of his separation (1). If a review by the Office of The Surgeon General determines the evidence supports it, 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. (2). 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. (3). 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 additional relief without benefit of the review described in c. 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, 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. 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 Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 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. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty 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 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 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 retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. 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. e. 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. 5. 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. 6. Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program), governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, U.S. Army Reserve, and Army National Guard. Paragraph 10-6 pertains to suspension of incentives and states recipients of an incentive will be suspended from the program when suspension of favorable personnel actions has been initiated for repeat APFT failure within a 1-year period. Two consecutive APFT or body fat standard failures will result in the termination of an incentive. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190000930 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1