IN THE CASE OF: BOARD DATE: 24 September 2020 DOCKET NUMBER: AR20190011947 APPLICANT REQUESTS: in effect, entry into the physical disability evaluation system (DES) with consideration of correcting his record to show he was medically retired vice transferred to the Retired Reserve. 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) * Sworn personal statement dated 7 November 2018 * Statement from Captain (CPT) W dated 7 November 2018 * Statement from spouse undated * Statement from daughter dated June 2018 * Memorandum from 376th Air Expeditionary Wing, Transit Center at Manas International Airport, Kyrgyz Republic, dated 3 October 2010, subject: Letter of Circumstances [Applicant] * Excerpts from his military personnel record * Orders 10-111-00025 dated 21 April 2010 * Orders PK-265-0034 dated 22 September 2010 * North Atlantic Treaty Organization (NATO) Travel Order PK-265-0034 * Orders A-10-029564 dated 18 October 2010 * Orders 293-001 dated 20 October 2010 * Orders A-10-030140 dated 22 October 2010 * Orders A-10-030140A01 dated 29 October 2010 * Orders 305-0267 dated 1 November 2010 * DA Form 5016 (Chronological Statement of Retirement Points) dated 17 August 2016 * DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 11 August 1984, 15 October 2005, 5 March 2008 and 30 December 2010 * Enlisted Qualification Record * Excerpts from his service treatment records * Traumatic brain injury (TBI) examination dated 22 April 2015 * Applicant Neuropsychological Evaluation Report dated 22 September 2017 * Department of Veterans Affairs (DVA) benefit letter date 22 February 2018 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140006068 on 16 December 2014. 2. The applicant states it is a gross injustice to him that U.S. Army medical personnel failed to properly evaluate him for a medical evaluation board (MEB) based on his injuries incurred during his multiple deployments in support of Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) (Afghanistan). Medical personnel failed to follow the regulatory instructions found in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). He states, in effect, based on their error the ABCMR should correct his record by showing he entered the DES and was medically retired with immediate entitlement to retired pay and not transferred to The Retired Reserves. From his research, medical personnel also did not comply with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 or with Army Regulation 40-400 (Medical Services – Patient Administration) chapters 3 and 7. 3. In a personal statement dated 7 November 2018 he discusses in detail his successful military career and his progression through the Noncommissioned Officer (NCO) Corps attaining the rank and grade of master sergeant (MSG)/E-8. He also discusses in detail his numerous NCO positions of increasing responsibility which is verified through his records of performance. a. He states his life changed during his deployment to Iraq in 2007 when his vehicle encountered an improvised explosive device (IED) and his convoy took small arms fire from enemy forces. He describes in detail the events of the day, to include the convoy containing a senior member of the Iraqi military forces. The impact of the IED on him and vehicle passengers caused them to hit their heads hard within the interior of the military vehicle. After the IED he experienced severe headaches and sought treatment at the military medical clinic. He was prescribed 800 milligrams of Motrin for pain relief. b. In October 2007, he had a second encounter with a roadside IED causing him physical harm because while riding inside the vehicle he was slammed into its door. He also lost consciousness during this IED encounter. c. He returned stateside and was released from active duty (REFRAD), returning to his U.S. Army Reserve (USAR) unit and his civilian place of employment. Upon his return to civilian employment, he started experiencing difficulty with retaining information and lost his job. He continued having problems with his memory and lost other civilian positions during a 3 year period. d. In 2010, he again mobilized to support operations in Afghanistan. Upon his arrival in Afghanistan he immediately experienced headaches, vomiting and loss of balance. He sought medical treatment wherein he was asked if he had been exposed to IEDs or similar blasts. He affirmatively replied to that question and was soon sent out of country to Germany for medical evaluation. His states his medical diagnoses included post-traumatic stress syndrome, migraine headaches and vertigo. He was not cleared to return to duty in Afghanistan and was medically evacuated back to the continental United States. f. Upon his arrival at Fort Bragg, he was again medically evaluated and underwent more tests. Medical personnel failed to determine what was wrong with him and he recalls being frustrated with their lack of answers. To him, Fort Bragg medical personnel kept deferring his medical treatment to the Department of Veterans Affairs (DVA) to include military case workers establishing DVA appointments for medical tests post REFRAD. By late 2010 the DVA diagnosed him with post-traumatic stress disorder (PTSD), vertigo and traumatic brain injury (TBI). He outlines the names of his DVA medical providers and the various medical treatments he has undergone in their care. g. In 2016, he was advised to file for unemployment benefits because he could not maintain civilian employment due to his inability to retain information (short-term memory). To date his DVA diagnoses include PTSD, vertigo, TBI, sleep apnea, and type 2 diabetes. He explains in detail the various medications he is required to take for his various ailments. He is still frustrated with the failures of military medicine at Fort Bragg to properly diagnosis and treat him. Based on their errors, he should enter the DES with an effective date of his REFRAD date. 4. A review of the applicant’s official military personnel file including multiple DD Forms 214s shows the following: * prior active service in the Regular Army * enlisted in the U.S. Army Reserve (USAR) on 9 July 1987 * promoted to sergeant first class (SFC)/pay grade E-7 on 1 March 2003 * mobilized on 18 October 2004 in support of OIF as an infantryman * served in Kuwait/Iraq from 22 November 2004 to 22 September 2005 receiving the Combat Infantryman Badge and the Bronze Star Medal * REFRAD on 15 October 2005 * second mobilization on 21 September 2006 in support of OIF * served in Kuwait/Iraq from 10 January to 28 December 2007 * promoted to MSG/E-8 on 3 January 2008 * REFRAD on 5 March 2008 * third mobilization on 9 July 2010 in support of OEF (Afghanistan) * served in Afghanistan from 1 October to 6 October 2010 * participant in Reserve Component Warriors in Transition Medical Retention Processing Program from 22 October to 30 December 2010 * REFRAD, not due to physical disability on 30 December 2010 * transferred to the Retired Reserve on 27 May 2011 * 25 years and 2 months of qualifying service for non-regular retirement at age 60 with 3,613 retirement points * turns 60 years old in October 2021 5. His noncommissioned officer evaluation reports (NCOERs) covering the period 1 October 2006 through 7 November 2010 show he was rated "Fully Capable" for his overall potential for promotion and/or service in positions of greater responsibility by his raters. He was also rated "Success" for physical fitness and military bearing on these reports except for one. He was rated "Needs Improvement" for being overweight during the period 14 September 2009 through 31 December 2009. 6. On 16 December 2014 the ABCMR first considered the applicant’s request for medical retirement. The Board denied his request stating, in effect, there was no evidence of record and he did not provide evidence showing a medical condition at the time of his service rendered him unable to perform his military and soldierly duties. 7. The applicant provides the following evidence for the Board’s review and consideration. a. On 3 October 2010 a letter was prepared in conjunction with his temporary tour of duty (TDY) orders showing he would travel from a location in Afghanistan to the Landstuhl Regional Medical Center located in Kaiserslautern, Germany. After his arrival in Afghanistan by air he started to experience headaches and sought medical treatment. The medical provider outlined the various examinations conducted, the medications prescribed to the applicant to include intravenous fluids, and the recommendation for further evaluation by aeromedical transfer to a large facility. The purpose of his TDY was for a neurologic evaluation based on his suspected TBI from a previous deployment to Iraq caused by an IED blast. b. A review of his service treatment records shows the following pertinent notations: * self-reported exposure to a blast falling out of bunk hitting his head losing consciousness in 2005; exposure to IED in October 2007 injuring his head * on 8 October 2010, he underwent magnetic resonance imaging (MRI) with no evidence of abnormalities * on 21 October 2010, underwent physical neurology examination with no abnormalities noted; migraine headaches with associated nausea/vomiting and fatigue with the likely trigger motion sensitivity; no neurological requirement for him to remain on active duty for continued care (emphasis added); recommended REFRAD * on 22 October 2010, he reported headaches relieved with Motrin and travel induced symptoms of nausea, vomiting and headaches since 2007 deployment to Iraq; a neurology examination was normal; MRI was normal; no abnormal neurological symptoms; and no abnormal psychological symptoms * on 1 November 2010, case manager stated his licensed clinical social worker walked him to the VA liaison official who will assist him with appointment scheduling at the VA; also stated his REFRAD orders would not be cancelled; he did not have a diagnosis of PTSD, he was displaying symptoms of PTSD * on 1 November 2010, also advised he had post discharge medical care through TRICARE for 6 months; he had no physical profile limitations noted c. He underwent a neuropsychological evaluation by a civilian provider coordinated through the DVA. The results of the examination and testing show the applicant has some executive deficits including tasks of cognitive flexibility, novel problem-solving, and generation of words beginning with certain phonemes. He also had weaknesses in visual perception. He has a pattern of executive deficits suggestive of mild frontosubcortical dysfunction with non-specific etiology. Examiner stated his exposure to IED blasts were less likely to be contributory. His conditions of significant mood distress, chronically poor sleep and under-treated sleep apnea, and vascular risk factors were more likely the contributing factors to his mild neurocognitive disorder. d. A DVA medical doctor performed a TBI examination on 22 April 2015 wherein he noted the applicant had a history of TBI events during OIF/OEF. The applicant experiences vertigo lasting 3 to 4 hours per event, has sleep disturbance, severe fatigue, and migraine headaches with malaise. He outlines additional physical and psychological limitations the applicant was experiencing at the time of examination. A brain MRI was normal. He concluded his written summary by stating the applicant’s diagnoses included TBI, cognitive impairments as a result of brain injury, chronic and severe post-traumatic migraines, PTSD, and diabetes mellitus. e. CPT W prepared an unsworn statement on 7 November 2018 stating, in effect, the situational circumstances wherein he and the applicant encountered an IED during convoy operations in June 2007 while in Iraq. The convoy was transporting/escorting senior members of the Iraq National Police. The applicant was the military vehicle driver. The IED exploded immediately behind them with the impact of the explosion shaking their vehicle violently causing the applicant to hit his head against the door well. They also encountered small arms fire. The applicant accelerated moving quickly to get beyond the area. He recalls observing the applicant with headaches after the IED blast. The applicant received medical treatment and was prescribed medication. f. In an undated letter the applicant’s spouse stated she has been asked many times to write statements on behalf of her husband. After his three deployments overseas, she realized he was a broken man and that parts of him were lost. He has memory issues, nightmares, a poor quality social life and being in public places is very challenging for him. She knows he suffered multiple concussions and lost part of his hearing while serving in the military. He is often agitated and short tempered. His vertigo causes him to vomit and be bed ridden for days. He also is depressed and cannot seem to maintain a civilian job because of his many medical conditions. She is convinced his medical conditions are straining their marital relationship. She indirectly states it is an injustice that he returned home a broken man and she requests relief. g. His daughter wrote it was a difficult adjustment for her after her father’s return home from multiple deployments. At the time she was in high school and when he returned he was not the same person as when he first deployed. She recalls he had a stellar memory, sharp hearing and was not fazed by life’s circumstances. She knows he encountered explosions while deployed believing they are the root cause of his various medical conditions including memory loss. She questions the DVA and attorneys who state her father’s medical conditions are age related. She knows he needs help due to his extended military service and believes her parents deserve help for the many sacrifices they made while her Dad served overseas. h. A DVA benefit letter dated 22 February 2018 shows he has service-connected disabilities and is currently rated 90 percent with the effective date change of 1 December 2017. He is being paid the 100 percent rate because he was deemed unemployable due to his service-connected disabilities. He was also considered to be totally and permanently disabled. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The 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: 2. This is an appeal of a prior case in which the applicant was denied relief. The applicant is requesting referral to the DES for consideration of military medical retirement. He states he was initially injured in Iraq in 2004 when his vehicle encountered an IED. He states that he had a second IED blast exposure in October 2007 resulting in a brief loss of consciousness. He reports subsequent memory issues resulting in difficulty maintaining employment following these events. There are no medical records in AHLTA indicating that the applicant was treated for either of these self-reported IED blast exposures. 3. He was scheduled to deploy a third time in 2010, but was only in Afghanistan for a few days when he developed headaches and vomiting and was evacuated to Germany for further evaluation. He was further evacuated to the United States for additional assessment, and was not cleared to return to Afghanistan. He underwent an MRI of the brain and complete neurological examination without any noted abnormalities. He states the VA diagnosed him with PTSD and TBI in late 2010 after he was REFRAD. He remained in the USAR completing a total of 25 years and 2 months of qualifying service for retirement. There is no indication in iPERMS that the applicant’s performance was impacted as a result of the IED blast exposures he reports he sustained. The only negative finding in the applicant’s NCOER’s after 2007 was related to him not meeting weight standards. There is also no evidence the applicant received the Purple Heart during his career. There is no new medical evidence submitted that was not available for review at the time of his last ABCMR application. There is no evidence that the applicant had been diagnosed with any condition that did not meet retention standards in accordance with Army Regulation 40-501, Chapter 3, at the time of his separation from the Army. 4. It is important to note that the applicant’s VA disability rating of 80% does not indicate that the Army erred in the applicant’s medical and behavioral health assessments at the time of his separation. Therefore, based on the available information, it is the opinion of the ARBA Medical Advisor that insufficient evidence exists to warrant a referral to the DES for consideration of military medical retirement. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that there is insufficient evidence indicating the applicant had a condition that did not meet retention standards prior to his transfer to the Retired Reserve in 2011, thereby warranting referral to the DES. Based on a preponderance of evidence, the Board determined there was no error or injustice in the medical determinations made in his case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140006068, dated 16 December 2014. 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. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes 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. It implements the requirements of Title 10, U.S. Code, chapter 61; Department of Defense Instructions (DoDI) 1332.18 (Disability Evaluation System (DES)); DoD Manuel 1332.18 (DES Volumes 1 through 3) and Army Directive 2012-22 (Changes to Integrated Disability Evaluation System Procedures) as modified by DoDI 1332.18. a. The objectives are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits to eligible Soldiers whose military service is terminated because of a service-connected disability; provide prompt disability evaluation processing ensuring the rights and interests of the Government and Soldier are protected; and, establish the Military Occupational Specialty Administrative Retention Review (MAR2) as an Army pre-DES evaluation process for Soldiers who require a P3 or P4 (permanent profile) for a medical condition that meets the medical retention standards of Army Regulation 40-501. b. Public Law 110-181 defines the term, physical DES, as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments and is composed of medical evaluation boards, physical evaluation boards, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. c. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile approved in accordance with the provisions of Army Regulation 40–501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears not to meet medical retention standards in accordance with AR 40–501. Within (but not later than) 1 year of diagnosis, the Soldier must be assigned a P3/P4 profile to refer the Soldier to the DES. (2) The Soldier is referred to the DES as the outcome of MAR2 evaluation. d. A medical evaluation board is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per Army Regulation 40-501. This board may determine a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. This board must not provide conclusions or recommendations regarding fitness determinations. e. The physical evaluation board determines fitness for purposes of Soldiers retention, separation or retirement for disability under Title 10, U.S. Code, chapter 61, or separation for disability without entitlement to disability benefits under other than Title 10, U.S. Code, chapter 61. The physical evaluation board also makes certain administrative determinations that may benefit implications under other provisions of law. f. Unless reserved for higher authority, the U.S. Army Physical Disability Agency approves disability cases for the Secretary of the Army and issues disposition instructions for Soldiers separated or retired for physical disability. 2. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by a medical evaluation board and may be referred to a physical evaluation board as defined in Army Regulation 635-40. a. Paragraph 3-8d refers to Mènière’s syndrome or recurrent vertigo of sufficient frequency and severity as to interfere with the satisfactory performance of duty or requiring frequent or prolonged medical care or hospitalization. b. Paragraph 3-30 refers to neurological disorders requiring referral to an MEB with paragraph 3-30g stating migraine, tension, or cluster headaches, when manifested by frequent incapacitating attacks will be referred to a neurologist who will ascertain the cause of the headaches. If the neurologist feels a trial of prophylactic medicine is warranted, a 3-month trial of therapy can be initiated. If the headaches are not adequately controlled at the end of 3 months, the Soldier will undergo an MEB referral to a PEB. If a neurologist determines the Soldier is unlikely to respond to therapy, the Soldier can be directly referred to an MEB. c. Paragraph 3-33 (Learning, psychiatric, and behavioral health) of this regulation dated 27 June 2019 states the diagnostic concepts and terms are in consonance with the Diagnostic and Statistical Manual of Mental Health Disorders (DSM-5). The minimum behavioral health evaluation will include evaluation for primary behavioral health disorders and medical conditions by a behavioral health provider which can result in significant symptoms. The causes for referral to the DES include anxiety, obsessive- compulsive, dissociative, somatic symptom and related disorders (excluding factitious disorder), and trauma and stressor related disorders that are persistent or recurrent symptoms sufficient to require extended or recurrent hospitalization or persistent or recurrent symptoms that interfere with duty performance and necessitate limitation of duty or duty in a protected environment. d. Paragraph 3-41 refers to general and miscellaneous conditions and defects with paragraph 3-41h specifically addressing miscellaneous conditions and defects not mentioned elsewhere in chapter 3 which are causes for referral to an MEB. (1) The conditions (individually or in combination) result in interference with satisfactory performance of duty as substantiated by the individual’s commander or supervisor. Any medical condition, injury or defect (individually or in combination) that prevents the Soldier from performing any of the functional activities listed under item number 5 on DA Form 3349 (Physical Profile). (2) The individual’s health or well-being would be compromised if they were to remain in the military service. (3) In view of the Soldier’s condition, their retention in the military service would prejudice the best interests of the Government. Questionable cases including those involving latent impairment, will be referred to a PEB. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190011947 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1