IN THE CASE OF: BOARD DATE: 25 February 2021 DOCKET NUMBER: AR20200001921 APPLICANT REQUESTS: That his transfer to the Retired Reserve due to a medical disqualification be voided and that he be reinstated in the U.S. Army Reserve in order to complete 20 years of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * excerpt of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Appendix B (Army Application of the Department of Veterans Affairs (VA) Scheduled for Rating Disabilities (August 1990 version) * VA Medical Center letter, dated 13 July 2017 * Letter of recommendation for retention, dated 7 January 2018 * VA Chemistry/Hematology Hemoglobin A1C Test Details * two DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard) FACTS: 1. The applicant states: a. He was discharged due to his diagnosis of type II diabetes, which was under control per Army Regulation 635-40, Appendix B-98. b. He was within 18 years of service, which also qualifies him for sanctuary, allowing him to complete 20 years of service. His condition is well under control; he only takes oral medication. c. He was discharged from the Army after 19 years of service. According to the Army, he was medically unfit due to type II diabetes. According to Army Regulation 635-40, B-98 [dated August 1990]: Diabetes mellitus [DM] a. The format published by the 1979 National Diabetes Group will serve as the basis for classifying diabetes mellitus. Individualize the severity of each case taking into consideration the expected natural course of the variants of diabetes mellitus. Insulin dosage is not a good indicator of the severity and is only one of the factors to consider in the overall evaluation of the disease. Response to specific therapy, diet, activity, compliance, and time are all important. With adequate compliance, many diabetics are fit with minimum profile restrictions. This is particularly true of type II DM (noninsulin dependent), even though insulin is prescribed for optimum control. Young adults with type I DM (insulin dependent) are high risk for retention. If unfitness derives, in part, from non-compliance with prescribed treatment, including diet and weight control, do not rate higher than the disease warrants when it is under prescribed treatment. b. Diabetes controlled by diet and or oral medication, without a need for daily insulin, and which does not impair health or vigor, or cause significant limitation of activity, is considered to be mild, if unfitting, stating, as long as it is under controlled. d. He is providing supporting documents from his doctor and command officers stating that he is fit to serve. His desired outcome is as follows: (1) Continue to serve as if no discharge took place. (2) Allow him sanctuary since he was within his window of service to do so, giving him 20 years of service, entitling him to full rights and privileges that are afforded as a veteran with 20 years of service, since he attained 19 years of service. (3) Amend retirement orders to show transfer to the Individual Ready Reserve, pending evaluation by an endocrinologist to determine if he can stop taking oral medication, and resume active Reserve status and lift "unable to transfer from medically retirement" and correct records showing reason for medical retirement. This does not show on current records. 2. Following enlisted service in the U.S. Navy Reserve, Army National Guard, and U.S. Army Reserve (USAR), the applicant was appointed as a Reserve commissioned officer. He executed his oath of office on 31 October 2009. 3. On 14 January 2019, the U.S. Army Human Resources Command (HRC) issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (15-Year Letter). The letter informed the applicant that as a member of the Selected Reserve who has been medically disqualified from further service, and has attained at least 15 years but less than 20 years of qualifying service, he is eligible to apply for retired pay and benefits upon attaining age 60 (Title 10, U.S. Code, Section 12731b ). His eligibility was determined based on the following qualifications: * he is not eligible for retention in the Selected Reserve due to medical disqualification * he completed at least 15 but less than 20 years of qualifying service * he completed the last required years of qualifying service while a member of a Reserve component as specified by Title 10, U.S. Code, section 1223 * he requested transfer to the Retired Reserve 4. Orders issued on 18 January 2019, directed the applicant's release from duty and his reassignment to the Retired Reserve, effective 1 March 2019, by reason of medically disqualified – not result of own misconduct. The orders show he is authorized early retirement under Title 10, U.S. Code, section 12731b, based on his medical disqualification. 5. The applicant's DA Form 5016 (Chronological Statement of Retirement Points) shows that as of 24 August 2018, he was credited with 17 years of qualifying service for non-regular retirement. 6. The applicant provided: a. A VA Medical Center letter, dated 13 July 2017, stating: Per your request, I am sending you this note in regards to your history of diabetes and childhood asthma, particularly in light of your possible military deployment in September 2017. You were diagnosed with diabetes mellitus in April 2014. For your diabetes, you are presently taking just Metformin SA 500 mg one tablet every day. Your most recent Hemoglobin A1c, done on 12 July 2017 was 7.6. While this indicates reasonable control of your diabetes, I think better control at your age would be appropriate. I would therefore have you increase the Metformin to 2 tablets every day. In any case, your diabetes does not present a contraindication to military deployment. b. A letter of recommendation for retention provided by his commanding officer stating: [The applicant] has been a valuable asset to his company as a commander and to his higher the 77th SUS BDE [Sustainment Brigade], he has maintained a level of physical fitness by never having a failed an APFT since in command and prior, despite his being diagnosed with type II diabetes. [The applicant] lives and practices a healthy nutritional life style. In his leadership he has created and implemented a healthy life style within his unit increasing his unit APFT from 38% to 60% pass. He has also thru his background and that of his leadership team incorporated a nutritional component for his Soldiers to assist and guide them in managing weight loss. I have reviewed the circumstances surrounding this case and firmly believe that [the applicant] is able to perform his duties successfully. c. A VA Chemistry/Hematology Hemoglobin A1C Test Details showing his test results. d. Two DA Forms 705 showing his passed his APFT in August 2016, May 2017, and October 2017. 7. Based on the applicant’s condition, 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 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. The applicant is applying to the ABCMR requesting reversal of the U.S. Army Physical Disability Agency’s non-duty related physical evaluation board (NDR PEB) finding that his type II diabetes was unfitting for continued service. He claims his diabetes was under control with oral medication and so should not have been an unfitting condition. He also claims to have had 18 years of service and therefore was qualified for sanctuary so he could reach 20 years of service. 3. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. His discharge orders show he was transferred to the Retired Reserve on 1 March 2019 due to a medical disqualification which was not the result of his own misconduct. 4. The applicant received a duty limiting permanent profile for his diabetes on 27 July 2017. It stated the applicant was unable to “live and function, without restrictions in any geographic or climatic area without worsening condition.” The applicant was notified of this medical disqualification in August 2017, and when presented with his election options, he opted for a NDR PEB. 5. Reserve Component Soldiers with non-duty related impairments which fail medical retention standards may elect referral to an NDR PEB. This Board affords these Soldiers the opportunity to have their fitness determined under the standards that apply to Soldiers who have the statutory right to be referred to the Disability Evaluation System (DES) for a fitness determination of their duty related medical condition(s). 6. On 14 February 2018, an NDR PEB determined the applicant’s type II diabetes was unfitting for continued service. The applicant non-concurred with this finding and he appeared at his formal board represented with regularly appointed counsel on 10 May 2018. The Board reviewed the case and acknowledged the new information presented. However, they correctly opined that Army policy and regulation prevent them from rendering a finding of fit for duty based on his non-deployable status: “The Board determined that the documentation presented does not support finding the Soldier is fit for duty due to the Under Secretary of Defense, DoD Retention Policy for Non-Deployable Service Member policy letter (14 February 2018) and AR 635-40, 5-4e(2). This condition is medically unacceptable and prevents worldwide deployment in a field or austere environment. If it were not for AR 635-40 and the DOD Retention Policy for non-Deployable Service Member policy letter, the Board would have found the Soldier fit.” 7. Because he had more than 15 but less than 20 years of service, he was eligible for and received his 15 year notice of eligibility to receive a non-regular retirement under Title 10 U.S. Code § 12731b, special rule for members with physical disabilities not incurred in line of duty (15-year notice of eligibility). 8. It is the opinion of the ARBA Medical Advisor that a reversal of the U.S. Army Physical Disability Agency’s non-duty NDR PEB finding that his type II diabetes was unfitting for continued service is not warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the NDR PEB's finding that his type II diabetes was unfitting for continued service was correct. The Board determined the NDR PEB's approved determination should not be changed. 3. The Board found insufficient evidence to support a conclusion that the applicant was in "sanctuary" as the available records show he had completed 17 qualifying years of service for non-regular retired pay. The Board determined the decision to issue him a notification of eligibility for retired pay at age 60 based on 15 years but less than 20 years of qualifying service and transfer him the Retired Reserve was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 gives the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required. These medical conditions and physical defects, individually or in combination, are those that: a. Significantly limit or interfere with the Soldier’s performance of their duties. b. May compromise or aggravate the Soldier’s health or well-being if they were to remain in the military Service. This may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring. c. May compromise the health or well-being of other Soldiers. d. May prejudice the best interests of the Government if the individual were to remain in the military Service. 2. Army Regulation 40-501 also states in" a. Paragraph 3-11, diabetes mellitus, unless hemoglobin A1c can be maintained at less than 7% using only lifestyle modifications (diet/exercise), warrants referral to a Medical Evaluation Board. b. Paragraph 9-10, normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve or discharged from the USAR They will be transferred to the Retired Reserve only if eligible and if they apply for it. Reservists who do not meet medical retention standards may request continuance in 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 non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a Physical Evaluation Board (PEB) a determination of fitness. c. Paragraph 9-12, Reserve Component (RC) Soldiers with non-duty 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 RC Soldiers with nonduty related medical conditions, MEBs are not required and cases are not sent through the PEB liaison officers at the medical 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 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. 3. The HRC website explains the Sanctuary Program as follows: a. The Sanctuary Program as defined by Title 10 of the United States Code, is a federal program designed to protect military service members from being forced to leave military service when they are within two years of attaining enough service to qualify for an active duty retirement. b. Any Reserve Soldier on active duty (including Retired Reserve Soldiers recalled to active duty, except for training) who has attained 18 but less than 20 years of active service, may not be involuntarily released from active duty before attaining 20 years of active service unless the Secretary of the Army or his/ her designee approve the release. c. Eligibility: * Must not be an Active Guard Reserve or a Regular Army Retired Recall Soldier * Must be a Army Reserve/ National Guard Soldier on active duty (except for training) (can be retired Reserve recalled Soldier) * Must have reached 18 years of active federal service (AFS) but less than 20 years of AFS, as calculated by HRC * Must NOT be on annual training, active duty for training, or initial active duty for training orders //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001921 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1