BOARD DATE: 28 August 2020 DOCKET NUMBER: AR20190002763 APPLICANT REQUESTS: through counsel, reconsideration of his prior requests for physical disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s letter, dated 6 February 2019 * Counsel’s Brief * U.S. General Accounting Office (GAO) Report to the Chairman, Committee on Veterans’ Affairs, U.S. Senate, Operation Desert Storm: Questions Remain on Possible Exposure to Reproductive Toxicants, dated August 1994 * Army Achievement Medal (AAM) Certificate, dated 9 November 1994 * Standard Form (SF) 600 (Chronological Record of Medical Care), dated 25 June 1996 * Medical Air Evacuation (MEDEVAC) Summary, dated 19 February 1998 * Educational Evaluation, dated 3 May 1998 * memorandum of evaluation, dated 13 July 1999 * Medical Evaluation Board (MEB) Narrative Summary (NARSUM), undated * Neuropsychology Summary and Recommendations, dated 20 October 1999 * DA From 199 (Physical Evaluation Board (PEB) Proceedings, dated 20 December 1999 * DD Form 214 (Certificate of Release or Discharge from Active Duty), covering the period from 17 May 1988 through 24 March 2000 * Department of Veterans Affairs (VA) Rating Decision, dated 26 April 2000 * VA letter, dated 9 May 2000 * VA Disabled Veterans Application for Vocational Rehabilitation, undated * Psychological Evaluation, dated 21 November 2001 * six affidavits FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's cases by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050011773 on 15 June 2006, and Docket Number AR20070007859 on 15 November 2007. 2. Counsel states: a. The applicant was discharged pursuant to Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) for disability. He seeks review of his case and award of a medical retirement. He was medically separated on 24 March 2000 with a disability rating of 10 percent. At that time, he was not otherwise eligible for retirement. b. The applicant was born, where he lived for 3 years before moving with his family to the. While living in, he attended, named after his grandfather, and attended church weekly throughout his adolescent life. He enlisted in the Army in 1988. He attended Basic Combat Training (BCT) at Fort Knox, KY, and Advanced Individual Training (AIT) where he learned how to operate the M1 Abrams Tank. c. The applicant was stationed in Vilseck, Germany, from 1990 to 1994, where he was deployed to Saudi Arabia and Kuwait during Operation Desert Storm and was awarded the AAM. He graduated from the Army Noncommissioned Officer Academy (NCOA) in Grafenwoehr, Germany in March 1994. After graduating from the NCOA, he deployed to Camp Doha, Kuwait and would later be awarded the Kuwait Liberation Medal. d. While in Kuwait, he began to experience asthma and respiratory problems due to the military’s use of pesticides and insect repellants. Upon returning from the Gulf War, he was transferred to Fort Lewis, WA, where he was stationed from 1994 to 1997. He would later be diagnosed with post-traumatic stress disorder (PTSD) on 25 June 1996, by Captain (CPT) N____ S____, a General Medical Officer at the Consolidated Troop Medical Clinic in Tacoma, WA after he attempted to hang himself in a hospital bathroom and he continued to receive treatment while stationed in Washington. e. The applicant was then transferred to Baumholder, Germany, where he served from 1997 to 2000. While there, he continued to suffer from asthma and respiratory problems, and due to his medical condition, he was reassigned to the supply department. He continued to receive medical treatment and underwent various medical exams which tested his cervical spine as well as his cognitive skill sets that were known to be deteriorating. f. On 10 August 1999, he was evaluated by a MEB for the following ten conditions which he did not suffer from upon enlistment in the Army: * severe allergic rhinitis(inflammation of the mucous membrane of the nose)/conjunctivitis (allergic eye inflammation) * chronic left hip tendonitis * cervical spine degenerative joint disease with neck pain * bilateral patellofemoral (anterior knee) pain syndrome * left shoulder impingement syndrome * functional cognitive dysfunctions * Gulf War syndrome * intermittent hematuria (blood in urine) * left pectineal muscle (anterior adductor of the hip) strain * dissociative amnesia in partial remission g. He was then referred to a PEB. On 20 October 1999, a Neuropsychology Evaluation was conducted by Lieutenant Colonel (LTC) B____. On 20 December 1999, a PEB convened and determined the applicant was physically unfit for continued service with a disability rating of 10 percent. He was subsequently discharged on 24 March 2000. The PEB erred in its decision to discharge the applicant as unfit for continued service and not award him a medical retirement. It is the Board’s responsibility to correct errors made by the PEB by reviewing the combined disability rating decisions as well as other evidence presented, to include VA Ratings. h. Army Regulation 635-40 states the overall effect of all disabilities present in a Soldier whose physical fitness in under evaluation must be considered. The effect will be considered both from the standpoint of how the disabilities affect the Soldier’s performance and the requirements imposed on the Army to maintain and protect him/her during future duty assignments. A Soldier may be unfit because of physical disability caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them alone would not cause unfitness. In this case, the PEB misapplied this criteria of the regulation by awarding him a 10 percent disability rating. His medical conditions are service connected and would prevent him from performing his duties at a level that would not hinder the Army’s mission. i. The applicant was assigned to an armor battalion and his duties involved the handling of heavy equipment, hazardous fuel, and movement up and down from large pieces of equipment. This job requires physical stamina and strength. Due to reconsolidating, the applicant was holding the position of Battalion Fuel Technician. After being evaluated by a medical officer, he was found unable to perform both his dues as a Fuel Technician as well as his basic Soldier duties. j. The PEB also failed to fully consider the burden it would place on the Army and its mission readiness in relation to what his unit would have to do in order to protect the applicant during future duty assignments. If he were to be retained in the Army, he would place a burden on both his command and his command’s mission by needing special attention and care to try to keep him at a level of physical readiness to be able serve in the capacity required of a Soldier in his military occupational specialty (MOS). k.. On 9 May 2000, the VA evaluated his medical conditions and awarded him a disability rating of 100 percent. The following conditions were found service-connected: * radial epicondylitis (right elbow), 10 percent * subacromial bursitis 9left shoulder), 20 percent * chronic tendonitis left adductor longus muscle (left thigh), 10 percent * PTSD, 100 percent * Gulf War Syndrome, 10 percent * degenerative changes in the cervical spine, 10 percent * allergic asthma, 60 percent * recurrent thoracic pain, 10 percent l. The VA found all of the applicant’s conditions which had been diagnosed by military medical practitioners to be service- connected. A well-grounded claim for service-connection requires evidence of a current disability, evidence of incurrence or aggravation of a disease or injury in service, and evidence of a nexus, or link, between the in-service injury or disease and the current disability. m. Since his departure from the Army, the applicant has divorced his wife due to the stress of dealing with complications from his military career. He has been unable to find employment or further his education due to cognitive problems caused by his Gulf War syndrome and PTSD. n. The evidence is clear and convincing that the PEB erred in its decision to discharge the petitioner as unfit for continued service and not award him a medical retirement. Therefore, it is fair and just for the Board to correct this error and correct his records to reflect medical retirement with full benefits as appropriate. 3. The applicant enlisted in the Regular Army on 5 October 1984. A DD Form 214 shows he was discharged after 4 months and 15 days of net active service on 19 February 1985, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) paragraph 5-11, for not meeting procurement medical fitness standards – no disability. It is unknown which specific procurement medical fitness standards he did not meet. His service was uncharacterized. 4. The applicant again enlisted in the Regular Army on 17 May 1988 and was awarded MOS 19K (Abrams Armor Crewman). His enlistment documents are not in his available records for review to help illuminate how he overcame his prior discharge in order to enlist a second time, presumably with a waiver. 5. He served in Southwest Asia during the following periods: * from 17 June 1991 through 31 August 1991 * from 28 August 1993 through 1 May 1994 6. Counsel provided a GAO Report, titled Operation Desert Storm: Questions Remain on Possible Exposure to Reproductive Toxicants, dated August 1994, which has been provided in full for the Board’s review. 7. A provided AAM Certificate shows the applicant was awarded an AAM on 9 November 1994 for meritorious service during numerous gunneries, Combat Maneuver Training Center rotations and a deployment to Southwest Asia during the period of service from 11 February 1991 through 17 November 1994. 8. An SF 600, dated 25 June 1996 shows the following: a. The applicant had complaints of arthritis in his right hand for 2 months. He had been placed in jail for 3 months and got out in January. He has had a lot of anxiety since then and would like to talk to somebody regarding this. He has not been seen for his hand. b. A follow on, undated, note shows the applicant tried to commit suicide in December 1995 by hanging himself in the hospital bathroom. He had been admitted at that time for tuberculosis (TB?) (the note contains a question mark after TB indicating that information was in question). At that point, the psychiatrists inferred that this was an act for the patient to try to escape from his situation and there was no psychiatric treatment since then. He denied suicidal thoughts or ideation since then. He was now in the barracks, having lost his wife after 15 years of marriage. He reported being unable to sleep and was worried about his situation. c. He was assessed as having PTSD with depressive features and hand joint pain. He was started on Prozac and Tylenol, given a psychiatry consultation, and referred to occupational therapy for his hand. He was to return if symptoms worsened. 9. A MEDEVAC Summary that appears to be dated 19 February 1998 shows: a. The applicant was seen for the first time in the Urology Clinic 7 months ago with a history of passing gross bloody urine following trauma to the right flank and complaints of slight discomfort. At that time the examination was negative and his urine was clear. b. He was again seen in the Urology Clinic on the date of the form and observation cystoscopy (procedure to examine the bladder and urethra) was done which was also negative for any pathology. A CAT scan of the abdomen showed a normal exam. c. The impression was recurrent hematuria. The recommendation was referral to Walter Reed Army Medical Center for further evaluation to rule out kidney pathology and management. MEDEVAC was pending. 10. An Educational Evaluation, dated 3 May 1998, shows: a. The applicant was administered a set of tests from the Woodcock-Johnson Psycho-Educational Battery Revised Tests of Achievements. b. In broad reading skills he was tested within the low range with a percentile rank of 4 where the standard score is 74. In broad mathematics he was tested as being within the low range in the 3 percentile rank where the standard score is 74. In broad written language he tested in the very low range with a percentile rank of 0.1 with the standard score being 48. 11. A memorandum from the applicant’s commander to the Landstuhl Regional Medical Center, dated 13 July 1999, shows: a. The applicant’s duties involved work with heavy equipment, hazardous fuel, and movement up and down from large pieces of equipment. His job required physical stamina and strength. He was then currently unable to successfully complete his duties due to his physical condition. He was unable to qualify with his weapon or participate in the Army Physical Fitness Test (APFT) due to his condition. b. His MOS was 19K, but due to reconsolidation, he was then currently holding the position of Battalion Fuel Technician. In this position, he had to complete rather strenuous activities that were not conducive to his medical condition. It was chronicled that he would not be able to successfully fulfill his duties in this field and he might have considerable difficulties performing his basic Soldier duties. c. The applicant’s condition was a result of Gulf War Syndrome. Along with this diagnosis, there was a sharp retrograde in his academic skills and limited job performance. He had not received a Noncommissioned Officer Evaluation Report (NCOER) in 2 years due to this condition. 12. An undated MEB NARSUM shows the following: a. The applicant’s chief complaint was left hip and thigh pain. He was referred to an MEB by a physician because of his inability to perform the duties in his MOS. His MEB diagnosed conditions were as follows: (1) chronic left hip adductor tendonitis (2) left pectineal muscle strain (3) bilateral patellofemoral pain syndrome (4) cervical spine degenerative joint disease with neck pain (5) left shoulder impingement syndrome (6) functional cognitive dysfunction (7) Gulf War Syndrome (8) intermittent hematuria (9) severe allergic rhinitis/conjunctivitis (10) dissociative amnesia, in partial remission b. The recommendation from the allergist was to continue the current medications and to not be exposed to outdoor duty, exhaust fumes, and no deployments. Recommendations from Orthopedics were to continue the physical therapy for his shoulder and seek orthopedic care in the future for the possibility of surgery. The recommendation of Dr. A____ [psychiatry service] was to continue treatment with Prozac. Recommendation from Dr. P____ [orthopedist] was to proceed with an MEB and medical discharge. Recommendation by Dr. F____ [urologist] was to follow his hematuria with serial evaluations. c. The applicant was deemed to not meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-33 (Anxiety, somatoform, or dissociative disorders), 3-38 (Skin and cellular tissues) (a, c (acne)(amyloidosis)), 3-41 (General and miscellaneous conditions and defects) (a) (1) (allergic rhinitis), and 3-41(e) (miscellaneous conditions and defects). He was referred to the PEB for evaluation and disposition. 13. A DA Form 3947 (MEB Proceedings) shows a MEB convened on 10 August 1999, the applicant agreed with the findings and recommendations of the MEB on the same date, and the applicant was referred to a PEB for the following conditions: * severe allergic rhinitis/conjunctivitis * chronic left hip adductor tendonitis * cervical spine degenerative joint disease with neck pain * bilateral patellofemoral pain syndrome * left shoulder impingement syndrome * functional cognitive dysfunctions * Gulf War Syndrome * intermittent hematuria * left pectineal muscle strain * dissociative amnesia, in partial remission 14. A MEB Addendum, dated 12 October 1999, shows: a. The applicant was first seen at the Outpatient Mental Health Clinic at Landstuhl Regional Medical Center on 9 February 1998 as a referral from the Baumholder Clinic. At the time, his chief complaint was being charged with something he did not do and going to jail for a long time. b. At the time, he stated his difficulties with memory had to do with stress that he suffered as a result of, in his perception, unjust accusation that he had molested his then 11-year-old daughter in October 1996. He was investigated by the Criminal Investigation Command (CID) for missing equipment in his office for which he was responsible and somehow in the process was charged with child molestation and violation of a restraining order. He was tried by court-martial in February or March 1997 and served 3 months at the Regional Correctional Facility while awaiting trial. He was subsequently found innocent of all charges. He felt his reputation suffered greatly as a result of these actions and felt symptoms of depression, sad mood, and difficulties with his memory. He stated he could not write, but he could read a little. c. He reported feeling angry and discriminated against and that his reputation had been destroyed, retarding his career. He said he was sad about 50 percent of the time and that he had insomnia, was tired, had loss of energy and interest and loss of libido. He denied suicidal ideation or guilt feelings. He also denied psychotic symptoms, panic attacks or symptoms of obsessive compulsive disorder. He had episodes of amnesia about 2-3 times per day since 1994 following a head injury and that some emotional symptoms have been present since 1991 following his involvement in the Gulf War. d. The applicant was evaluated by Neurology at Fort Lewis, WA, and had an EEG with no positive findings. He was diagnosed with dissociative amnesia, in full remission, personality traits (possessive, paranoid, controlling) and was prescribed Prozac for symptoms of depression. The applicant’s ability to perform at work in a civilian environment may be mildly affected by some of his personality symptoms and residual symptoms of dissociative amnesia 15. Documentation pertaining to the charges against the applicant, his incarceration, and court-martial are not in his available records for review. 16. A Neuropsychology Summary and Recommendation, dated 20 October 1999 shows: a. The MEB requested a neuropsychological evaluation of the applicant to assess a variety of cognitive complaints. This evaluation is part of the applicant’s comprehensive medical assessment for the Persian Gulf illness program. He claims a significant loss of functioning, to include being unable to recall very basic information such as the alphabet. While testing suggests he has probably functioned at best at the low average range of intellectual functioning, it is highly unlikely he could have experienced this degree of crystallized intelligence in the absence of a very obvious and sever brain pathology. b. In addition, if such brain pathology were present and had progressed to the point at which this level of knowledge was deteriorating, the applicant would likely be unable to perform the activities of daily life at the level he is. While he may have some degree of cognitive deficit, it is impossible to characterize it based on either this or the previous evaluation (which appeared more impaired), as his performance is far more impaired than can be reasonably accounted for by his neurological status. c. The best explanation of his symptoms would involve a psychiatric diagnosis of conversion or other somatoform disorder, as he found no evidence that the applicant was intentionally producing poor performance. The applicant’s Minnesota Multiphasic Personality Inventory (MMPI-2) results support this diagnosis and also suggest he is experiencing significant depression. d. The applicant’s neuropsychological functioning was only mildly impaired if his measured intellectual functioning was accurate. While he did not believe there was a neurological basis for the applicant’s cognitive symptoms, his current neuropsychological functioning would likely produce definite impairment of social and occupational functioning. His diagnostic impression was somatoform disorder not otherwise specified and depressive disorder not otherwise specified. 17. Page 1 of a DA Form 199 shows a PEB convened on 20 December 1999 and found the following: a. The applicant was found unfit for MEB diagnoses 2-5 and 9, left hip, left shoulder, knees, and neck pain with a combined disability rating of 10 percent. Radiographs of both hips as well as the shoulder were normal. Radiographs of the cervical spine showed degenerative changes. There was no joint instability and no neurovascular deficits. His recommended disposition was discharge with severance pay. b. MEB diagnoses 1, 6, 7, 8, and 10 were found not unfitting and were not ratable. The Psychiatric Addendum (Dr. A____) and the Neuropsychological Summary, dated 20 October 1999, show his conditions not unfitting and not ratable. 18. A DA Form 199 shows a formal PEB convened on 15 February 2000 and found the following: a. The applicant was found unfit for MEB diagnoses 2-5 and 9, left hip, left shoulder, knees, and neck pain with a combined disability rating of 10 percent. Radiographs of both hips as well as the shoulder were normal. Radiographs of the cervical spine showed degenerative changes. There was no joint instability and no neurovascular deficits. His recommended disposition was discharge with severance pay. b. MEB diagnoses 1, 6, 7, 8, and 10 were found not unfitting and were not ratable. The Psychiatric Addendum (Dr. A____) and the Neuropsychological Summary, dated 20 October 199, show his conditions not unfitting and not ratable. c. The applicant concurred with the findings on 15 February 2000. 19. A DD Form 214 shows he was honorably discharged on 24 March 2000 due to disability with severance pay, after 11 years, 10 months, and 8 days of net active service this period and 4 months and 15 days prior service. 20. A VA Rating Decision, dated 26 April 2000, shows he was granted a service- connected disability rating for the following conditions effective 25 March 2000: * chronic radial epicondylitis, right elbow, 10 percent * subacromial bursitis, left shoulder, 20 percent * chronic tendonitis left adductor longus muscle, left thigh, 10 percent * PTSD with major depression and with cognitive disorder not otherwise specified, 70 percent * abnormal fatigue and exertional intolerance as an undiagnosed illness of the Gulf War, 10 percent * degenerative changes, cervical spine with paraspinal muscle spasm, 10 percent * rhino-conjunctivitis with facial swelling and severe lid edema, 0 percent * allergic asthma requiring constant double medication, 60 percent * recurrent thoracic pain as an undiagnosed illness of the Gulf War, 10 percent * residuals, traumatic contusion, right kidney, 0 percent 21. A VA letter, dated 9 May 2000, shows the applicant was granted a combined service-connected disability rating of 100 percent for the above-listed conditions. 22. The applicant provided an incompletely filled out VA Form, Disabled Veterans Application for Vocational Rehabilitation, unsigned and undated. 23. A Psychological Evaluation, conducted by Dr. R____ S_____, licensed psychologist, on 21 November 2001 has been provided in full for the Board’s review and shows in pertinent part: a. The diagnostic impressions were as follows: * PTSD * major depressive disorder, recurrent, severe with psychotic symptoms * rule out cognitive disorder, not otherwise specified * borderline intellectual functioning * chronic joint pain, status post-surgery on left arm * chronic tendentious * allergies * unemployment * social problems * serious impairment within social, occupational and intellectual functioning b. The applicant’s prognosis was guarded. An additional review of his previous level of functioning while in high school and the Army is recommended. He continues to require psychological and psychiatric treatment for his diagnosed PTSD and major depressive conditions. Neuropsychological testing may also be of assistance in ruling out the presence of a major cognitive dysfunction. c. With regard to his ability for independent living, the applicant was reportedly capable of bathing and grooming himself; however, he was unable to perform simple household chores because of a chronic allergic condition that prevented him from conducting most cleaning duties. He was also reportedly unable to shop for himself due to hypersensitivity and feelings of suspiciousness when around groups of people. He was capable of transporting himself for short distances. 24. The applicant provided six affidavits written by former colleagues, family members, and friends. They attest to his medical conditions including coughing up blood, shaking, memory loss, allergy attacks and diminished cognitive abilities, as well as his honest and loyal character. 25. The applicant twice applied to the ABCMR requesting amendment of his physical disability discharge with severance pay to physical disability retirement. On 15 June 2006 and again on 15 November 2007, the Board voted to deny the applicant’s requests, determining the evidence presented did not demonstrate the existence of a probable error or injustice. 26. 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 may compensate the individual for loss of civilian employability. This condition significantly interferes with the satisfactory performance of the applicant’s military duties and he has no doubt had the applicant been referred to an MEB/PEB for this condition that he would have received a permanent medical retirement. 27. Title 38, USC, 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 VA rating does not establish an error or injustice on the part of the Army. 28. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. 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. 29. Based on the applicant's contention the Army Review Board Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), and the VA's Joint Legacy Viewer (JLV). 2. The applicant was separated with severance pay and is requesting Army medical retirement. The 10 August 1999 MEB Proceedings on a DA Form 3947 showed the following conditions: Severe Allergic Rhinitis; Chronic Left Hip Adductor Tendonitis; Cervical Spine Degenerative Joint Disease with Neck Pain; Bilateral Patellofemoral Pain Syndrome; Left Shoulder Impingement Syndrome; Functional Cognitive Syndrome; Gulf War Syndrome; Intermittent Hematuria; Left Pectineal Muscle Strain; and Dissociative Amnesia, in Partial Remission. The MEB NARSUM identified only the hip condition as not meeting retention standards. The 20 December 1999 informal PEB found MEB diagnoses of Chronic Left Hip Adductor Tendonitis, Cervical Spine Degenerative Joint Disease with Neck Pain, Left Shoulder Impingement Syndrome, and Left Pectineal Muscle Strain conditions grouped together as unfitting and assigned a 10% rating that was upheld in a subsequent formal hearing by the PEB convened on 15 February 2000. The PEB also found that the Severe Allergic Rhinitis; Functional Cognitive Syndrome; Gulf War Syndrome; Intermittent Hematuria; and Dissociative Amnesia conditions were not unfitting. Available service treatment records and as well as records up to one year post-discharge were specifically reviewed. 3. Of special note, post-discharge, the VA rated the applicant’s asthma condition. There were no in-service notes to review for this condition. After discharge, allergy notes indicated the Asthma condition was diagnosed and treated during active service. It is unclear why the asthma diagnosis was not listed on the DA Form 3947, but from review, the applicant was more symptomatic from his allergic rhinitis than his asthma. After discharge, on 15 June 2000 the applicant was seen in the emergency room for “mild wheezing” after having run out of his medication for asthma. On 3 July 2000 he was seen in follow up by primary care and his asthma was assessed as improved. In subsequent visits reviewed, the lung exam was without wheezing. On 12 December 2000, the applicant was first seen by a pulmonologist who assessed that the current lung function testing was “normal” (completed 15 November 2000). Repeat lung testing results on 16 December 2000 prompted the pulmonologist to state the applicant’s asthma was “in control”. 4. Also of special note, the applicant was re-evaluated 12 October 1999 (prior to the PEB Proceedings) and found to be in Full Remission for his Dissociative Amnesia condition. In the 20 October 1999 neuropsychology assessment, the examiner wrote that the applicant’s “neuropsychological functioning is only mildly impaired if his measured intellectual functioning is accurate. While I do not believe there is a neurological basis for his cognitive symptoms, his current neuropsychological functioning will likely produce definite impairment of social and occupational functioning”. The NCOER dated 7 February 2000 with period covered from February 1998 through January 1999 showed no concern for his overall potential for promotion and/or service in positions of greater responsibility, that he was ‘fully capable’ and consistently displayed ability to complete the task. However, it was observed that the 13 July 1999 Commander Statement (on DA Form 7652) annotated that “there has been a sharp retrograde in academic skills and limited on the job performance”. 5. After military discharge, the VA listed PTSD and Major Depression with Cognitive Disorder as diagnoses in their 9 May 2000 rating decision. Twenty months after discharge, on 21 November 2001, a Psychological Evaluation assessed that his Major Depression was severe and recurrent with psychotic symptoms. However, while in service, he denied symptoms of psychosis (12 October 1999 MEB Addendum). He had endorsed symptoms of depression related to a court-martial charge for missing equipment; an alleged molestation charge; and having had to serve 6 months in a correctional facility while awaiting trial. He was found innocent of all charges. He was treated with medication, but he was not profiled or hospitalized for his behavioral health condition. 6. On 21 Jul 2005, he has evaluated for compensation and pension purposes and his Mini Mental Status Exam score was 26/30 (normal) and it was annotated: “He is cognitively grossly adequate without major impairments noted and this was confirmed on the recent mini mental status examination. His reported IQ above is consistent generally with the impression that he gives today in terms of his overall capacity.” It should also be noted that the examiner assessed that the applicant was completely disabled during that exam (due to mental and physical symptoms). Based on review of all available records, at this time the evidence is insufficient to support that the Severe Allergic Rhinitis/Conjunctivitis; Functional Cognitive Syndrome; Gulf War Syndrome; Intermittent Hematuria; Left Pectineal Muscle Strain; and Dissociative Amnesia in Full Remission conditions failed retention standards at the time of the applicant’s discharge from service. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and a medical review. The Board concurred with the conclusion of the ARBA Medical Advisor that the available evidence is insufficient to support a conclusion that the applicant had additional conditions that should have been found unfitting by the PEB. Based on a preponderance of evidence, the Board determined that the applicant's discharge for disability with severance pay was not in error or unjust. 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. X__________________________ 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, 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. 2. 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. 3. 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. 4. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190002763 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1