IN THE CASE OF: BOARD DATE: 28 September 2020 DOCKET NUMBER: AR20190014983 APPLICANT REQUESTS: medical retirement and a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * 2 Letters of Support * Board of Veteran's Appeal documents 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 he was injured on 1 June 2014, and was no longer able to perform his military duties. The U.S. Army Reserve does not have a viable medical evaluation board (MEB) process, he retired without having a proper MEB which would have entitled him to a disability retirement. He underwent his annual physical as required for Soldiers over the age of 50. The physician determined he was unable to perform his military duties. He retired from his civilian job and applied for his military retirement. When he applied for his military retirement he was informed his medical records were being assembled for a MEB. He had no income and needed his military retirement pay. He should have been referred to a MEB immediately after his 1 June 2014, injury. He retired on 15 February 2016. He should be entitled to military retirement pay up to 75 percent of his base pay. 3. After having prior enlisted service in the U.S. Air Force and the Army Nation National Guard, the applicant was appointed a Reserve commissioned officer on 26 November 2003. 4. On 1 October 2009, the applicant was informed he had completed the required years of qualifying reserve service and was eligible for retired pay at age 60. 5. The applicant was ordered to active duty in support of Operation Enduring Freedom and entered active duty on 1 February 2012. On 30 January 2013, he was honorably released from active duty due to completion of required active duty. 6. Orders C02-691589, issued by U.S. Army Human Resources Command, dated 7 March 2916, shows the applicant was retired and placed on the retired list effective 16 February 2016. 7. The applicant’s medical records are not available for the board’s review and the available records contain no evidence showing the applicant sustained an injury or was diagnosed with an illness of such severity it rendered him unable to perform the duties commensurate with his grade and military occupational specialty (MOS), thereby warranting entry into the physical disability evaluation system (PDES). Additionally, there is no indication he had been given a permanent profile. 8. The applicant provides two unsigned letters of support stating the applicant sustained a shoulder injury on 1 June 2014. 9. The applicant also provides document from the Board of Veteran Appeals, dated 26 September 2019, showing the applicant was awarded service-connected disability for a shoulder injury and for left wrist De Quervain's tenosynovitis. 10. 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. 11. 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. 12. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. 13. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. 14. 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. 15. 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. 16. 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. MEDICAL REVIEW: 1. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: 2. There were no medical documents submitted with the application. Witness statements are consistent, showing the applicant injured his left shoulder while on an obstacle course on 1 June 2014. He was seen that day at the immediate care clinic on post for “arm pain”. The applicant was tender to palpation over the mid and distal intact biceps. He was diagnosed with a biceps tendon strain, provided a sling, icepack, and some medication, and discharged with a temporary profile. The applicant was placed on a duty limiting permanent profile on 8 January 2016, which was just 39 days before he retired. While this provided him with the opportunity to enter the IDES system, he would have been found fit by presumption and received no disability compensation. 3. The time frame during which the presumption of fitness rule is applicable is known as the presumptive period, and is the 12 months prior to a service member’s discharge from the Service for any of the reasons outlined in paragraph 5b of appendix 2 to enclosure 3 of Department of Defense Instruction 1332.18, SUBJECT: Disability Evaluation System (DES) (5 August 2014). When a service member is referred to the DES during this period, the member is found fit by presumption, that is, the medical condition(s) did not cause or contribute to their career termination and so are non- compensable. For the Army, the date of referral to the DES is the date the Soldier’s profile is signed by the approval authority. In this case, it is 8 January 2016. The exact reason for presumptive period for this applicant is not known as the supporting documentation and iPERMS records are incomplete. 4. Retiring is a process and does not happen quickly. iPERMS does contain his application for retired pay benefits signed by the applicant on 22 April 2015. There is no evidence this condition negatively affected his performance as an Officer in the JAG Corps. Given the current documentation, it is the opinion of the Agency Medical Advisor that a referral of his case to the DES is not warranted. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s requests, contentions, and the Army Review Board Agency Medical Advisory Opinion, the Board found insufficient evidence to grant relief. 1. The Board agreed with the Medical Advisory Opinion that the applicant’s shoulder condition falls under the fit by presumption rule in that the injury occurred 39 days prior to the applicant’s retirement. The Board found insufficient evidence that this condition negatively affected the applicant’s performance as an Officer in the JAG Corps, or that his shoulder injury was the impetus for the applicant’s discharge. Given the current documentation, the Board found that a referral of his case to the DES is not warranted. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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 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, chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 4. 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 an MEB and will be referred to a PEB as defined in Army Regulation 635–40 with the following caveats: a. USAR or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 or discharged from the USAR per AR 135–175 (Separation of Officers) or Army Regulation 135–178 (Enlisted Administrative Separations). They will be transferred to the Retired Reserve only if eligible and if they apply for it. c. Reservists who do not meet medical retention standards may request continuance in an active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reservists with nonduty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. d. Paragraph 9-12 states Reserve component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Reserve component Soldiers with nonduty related medical conditions, MEBs are not required and cases are not sent through the PEBLOs (Physical Evaluation Board Liaison Officers) at the military treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USARC Regional Support Command or the U.S. Army Human Resources Command Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. 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. 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. 7. 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) AR20190014983 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1