IN THE CASE OF: BOARD DATE: 16 February 2022 DOCKET NUMBER: AR20210005241 APPLICANT REQUESTS: * in effect, correction of his records to show his narrative reason for separation as “Disability – Permanent” * an upgrade of his general, under honorable conditions characterization of service to honorable (from the U.S. Army Reserve (USAR)) * alternatively, a retroactive referral to the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel Brief * DD Form 214 (certificate of Release or Discharge from Active Duty), for the period ending 25 November 2015 * Medical Records * E-mail Communication with Supervisor FACTS: 1. The applicant, through counsel, states the applicant enlisted in the USAR on 30 June 2015. He graduated basic training and advanced individual training and held military occupational specialty (MOS) 91H (Tracked Vehicle Repairer). In February 2016, while taking his required annual Army Physical Fitness Test (APFT), he felt a pull in his back after completing the sit-up portion. He advised his noncommissioned officer administering the APFT what occurred and was advised to continue with the APFT. He did as he was instructed and began the 2-mile portion of the test. The venue included pot holes and as he was running, his foot landed in one and his leg twisted. a. Later that day he went to the emergency room and was treated for low back pain. He was given a Toradol injection for the pain. His pain continued through both March and April of 2016. He was medically excused from drill and physical training and referred to an orthopedic specialist. b. If the applicant can provide sufficient and substantial evidence that they were the victim of a material error or material injustice, the Board will correct the record. He was discharged on 6 February 2016 without a line of duty investigation. A line of duty investigation will be conducted on all Soldiers regardless of component if the Soldier experiences a loss of duty time for a period more than 24-hours and the injury, illness, or disease is of lasting significance. The applicant attended a required period of drill and sought medical attention. c. He suffered serious and progressive injuries as a result of his participation in the required APFT and a line of duty investigation and determination should have been completed. The general, under honorable conditions characterization of service was completely improper and unsupported. 2. Review of the applicant's service records shows: a. The applicant enlisted in the USAR for 8 years on 7 May 2015. b. He entered active duty for training on 30 June 2015. He completed training for award of military occupational specialty 91H (Track Vehicle Repairer). c. After the completion of his required active service, he was honorably released from active duty and transferred to the USAR on 25 November 2015. His DD Form 214 shows he completed 4 months and 26 days of active service. d. He was assigned to the 382nd Engineer Battalion, Mechanicsburg, PA. e. The applicant provides: * medical records, which show his visit information, instructions, and prescriptions as well as a note showing the results of a fluoroscopic view of his right SI joint * an e-mail to his supervisor indicating he would not be able to make drill that month due to a doctor’s appointment; his supervisor responded they could put him in limited duty for the drill f. The complete facts and circumstances surrounding his discharge are not filed in his service record nor provided by him. On 30 January 2019, Headquarters, 99th Readiness Division (USAR), published Orders 19-030-00053, which discharged the applicant from the USAR. The orders reflect an effective date of 6 February 2019 and an under honorable conditions (General) characterization of service. The authority reflects Army Regulation (AR) 135-178 (Enlisted Administrative Separations). g. His DA Form 5016 (Chronological Record of Retirement Points) show she completed 3 qualifying years of service towards non-regular retirement. 3. An advisory opinion was received in the processing of this case from the U.S. Army Human Resources Command (HRC). On 24 August 2021, the Command Surgeon stated: a. After review of the applicant’s medical records, DA Form 2173 (Statement of Medical Examination and Duty Status), which determined the injury is considered to have been incurred in line of duty. b. A line of duty investigation will be conducted for all Soldiers, regardless of component, if the Soldier experiences a loss of duty time for a period of more than 24 hours and if a Reserve Component Soldier requires follow-on care for an injury, illness, or disease incurred during a period of active duty. An injury, illness, or disease diagnosed while serving on active duty or in a duty status does not mean that the injury, illness, or disease was incurred while serving on active duty or that an existed prior to service condition was service aggravated. An expert medical opinion from an appropriate provider is required and must address when the condition was incurred, if the condition existed prior to the current military service, and whether the condition was service aggravated. c. Casualty reports are required when military and civilian personnel become deceased, DUSTWUN, EAWUN, injured, or ill. All USAR and Army National Guard Soldiers staying at their residence when so authorized by proper authority during the period of such inactive duty training or between successive days of inactive duty training, and/or while en route to or from, or while participating in the following authorized training events: scheduled inactive duty training. d. On 12 December 2018, a clinical note was placed in AHLTA at Walter Reed National Military Medical Center annotating a fit for duty request for the applicant. It was noted the information was sent to the military treatment facility for further guidance regarding a fit for duty exam and appointment. There is no additional information annotated regarding a fit for duty exam or additional guidance. e. Based on this information, the Surgeon recommended a line of duty be considered for the applicant. Additionally, she recommended a fit for duty examination be considered to determine if the service member met criteria for retention in the military or if a MEB should have been considered for this individual. This would include a review of all the civilian medical documentation associated with the low back pain believed to have been precipitated during an APFT. 4. On 31 August 2021, the applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. He did not respond. 5. By regulation, a line of duty investigation must be completed promptly, as the determination will impact the Soldier’s eligibility for Federal benefits, such as access to medical care, compensation, and disability entitlements. The line of duty will not be entered into the system of record until all required documentation is received, except in emergent care. A Soldier will not be separated or retired, without the Soldier’s consent, while a line of duty determination, MEB, or PEB is pending unless otherwise permitted by law. A formal line of duty is required for disease incurred while performing annual training, inactive duty training, or ordered to active duty for less than 30 days. 6. Soldiers are referred to the disability system when they have a condition that does not meet medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness) and/or prevents the Soldier from performing all required functional activities. An MEB is convened to determine whether a Soldier’s medical condition meets medical retention standards per AR 40-501. A PEB determines fitness for purposes of Soldiers retention, separation, or retirement for disability. 7. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA),and in the Health Artifacts Image Management Solutions (HAIMS). Joint Legacy Viewer (JLV) search did not yield any VA facility visits. Through his counselor’s brief the applicant made the following statements: He reported a back injury during physical training test which he stated occurred during the sit-up portion of a physical training test, and the injury was exacerbated during the 2-mile run portion. He was discharged from USAR 3 years later. He stated that his back pain continued, and he was treated from 2016 to 2019 with steroids, pain medication, chiropractic interventions, and back injections without relief. A LOD was never completed. He also contends that the General, Under Honorable Conditions characterization of his service was improper and unsupported. He requests medical discharge. a. In-service medical records and related. (1) 21Feb2016 Statement of Medical Examination and Duty Status was completed on the date of injury. It was annotated that he injured his back during the APFT while on duty at Ft Indiantown Gap, PA during the 2 mile run. He experienced muscle spasms. The medic instructed him to go to the hospital. DA Form 2173 item #31 ‘formal line of duty investigation required?’ was checked ‘no’. (2) 21Feb2016 Emergency Record. He presented with back pain secondary to recent PT test. He felt a pulling sensation when he was doing sit-ups, exacerbated by subsequent 2-mile run. He had 8/10 non-radiating pain. Back Exam: There was normal inspection; and normal range of motion. There was paraspinal tenderness, to the right lower back. The neurologic exam showed normal gait. He also had normal motor strength and sensation. Diagnostic Impression: Muscle Strain. Treatment was warm compresses, and muscle relaxant. He was to return if symptoms worsened. (3) 06May2016 Family Practice. He was excused from drill due to back injury. The extent of his injury was unknown, and for safety he wasn’t to exercise more than a casual walk. The note indicated an MRI was pending. (4) 09Jun2016 Functional Capacity Certificate Form 507. The applicant stated he could not perform multiple functional activities: Carry and fire weapon; Evade fire; Ride longer than 12 hours in military vehicle and others. The provider concurred with the applicant and the form was awaiting the orthopedic specialist’s signature to determine the expiration date for the profile. (5) 16Aug2016 Periodic Health Assessment. The PULHES was 111111. He was deployable in the next 6 months. He reported: Migraines twice per week, treated with over-the-counter medication; he stated he had back pain for 6 months and had an appointment scheduled with his primary care doctor for follow up; and finally, he reported having had surgery on both knees-still painful. (6) 19Aug2016 Health. Lumbar spine showed mild degenerative joint disease with mild facet arthropathy especially at L3-4 through L5-S1 levels. (7) 08Sep2016 temporary physical profile for Lower Back Injury/Pain showed multiple functional activity limitations and no APFT events. (8) 16Feb2017 Health. Lumbar spine MRI showed minimal bulging of the disc posteriorly at T12-L1. There was no spinal stenosis. (9) 24Jun2017 Periodic Health Assessment. He reported the back injury and disclosed that he was going for a back injection. He also noted headaches for which he took Aleve. The PULHES was 111111. He was deemed deployable within the next 6 months. (10) 26Jun2017 Reserve Health Readiness Program showed he was physically fit for retention under provisions of AR 40-501, Standards of Medical Fitness. It was noted he reported a history of headaches, back and knee pain. (11) 28Jun2017 temporary physical profile for Unspecified Mental or Behavioral Problem. The profile expired 25Aug2017 with functional activity limitations prohibiting individual assigned weapon and deployment. (12) 28Jul2017 Deployment Mental Health Assessment results showed a referral was not indicated. (13) 14Nov2017 Health Pain Management Procedure Note. He underwent bilateral sacroiliac joint injection due to failure of conservative management. Diagnosis: Sacroilliac Joint Dysfunction. He was to follow up in 2 weeks. There were no clinical visits after this that were available for review. (14) 18Apr2018 Chronological Record of Medical Care. It was indicated that a profile request packet had been received. He was advised that his packet was dated (signature was over 45 days old). He was also advised that although his primary care doctor could request a temporary profile, a permanent profile needed the specialist’s recommendation. He was further advised that he needed to have supporting medical documentation with the profile request and that it should be documented that treatment options had been exhausted. And finally, he was advised that at the time, he did not have a valid profile. He was given 30 days to submit the requested documentation. (15) 15Jun2018 Chronological Record of Medical Care. It was annotated that “at this time, available documentation does not support re-initiation of a temporary profile for condition. Per Army Directive 2016-07 (Redesign of Personnel Readiness and Medical Deployability) dated 01Mar2016. Case will be closed at this time. Profile email with attached profile request packet sent to Soldier and to Commander.” (16) 26Oct2018 Health Questionnaire for Dental Treatment (DA Form 5570). He mentioned current treatment for headaches, but not for back pain. The year prior, on 25Apr2017, he did report back injury, and medication Meloxicam (NSAID medication for pain). (17) 30Jan2019 Orders 19-030-00053 indicated that he was discharged from USAR effective 06Feb2019 under provisions of AR 135-178. Characterization of discharge was Under Honorable Conditions, General. b. 24Aug2021 memorandum for ARBA from U.S. Army HRC with subject: Advisory Opinion for SPC , , 91H, AR20210005241 indicated that a 12 Dec 2018 @ 1550 a clinical note was placed in AHLTA by at Walter Reed National Military Medical Center annotating a Fit for Duty (FFD) request by LTC , for . noted the information was sent to the Military Treatment Facility (MTF) for further guidance regarding a FFD exam and appointment. There was no additional information annotated regarding a FFD exam or additional guidance by the MTF. The Command Surgeon recommended a line of duty be considered for SPC . Additionally, they recommended a FFD examination be considered to determine if the service member met criteria for retention in the military or if a Medical Evaluation Board should have been considered for this individual. c. The record did not show prior back problems (before the injury in February 2016). The Statement of Medical Examination and Duty Status annotated that he was sent by the medic to the emergency room from the injury site. It was selected that a LOD investigation was not needed—this appears to be an error. Per regulation, a LOD should have been completed. Recommend In-LOD Not due to Own Misconduct. d. There were no VA records found during JLV search. The applicant was reportedly uninsured and stated that he had trouble receiving care. The last treatment visit noted in the documentation provided was in November 2017, for a steroid injection. The applicant was to return for follow-up in 2 weeks. That follow up visit was not found in the documentation provided. He was discharged over a year later. Drill attendance record during that year was not provided. The documentation to support a permanent level 3 profile for the back injury/pain described as Minimal Disc Bulge at T12-L1, was not present in the case file. Concerning a referral for MEB/PEB, the applicant did not have a permanent level 3 profile that would trigger the process. Based on records currently available for review, evidence is insufficient to support that the applicant had a condition which failed medical retention standards at the time of separation in accordance with AR 40-501 chapter 3. Recommend: Referral for medical discharge processing is not warranted at this time. e. The applicant mentioned chiropractic interventions—these notes were not found in the case file. Nor were physical therapy notes. If the applicant has records documenting continued follow up after November 2017, the ARBA reviewer would reconsider their recommendation based on the content of the records. Concerning the character of service, the exact circumstances of the applicant’s discharge from service is unknown. Enlistment paperwork indicated that he signed up for 8 years in 2015. He was discharged in 2019, the reason for discharge was not specified. Recommend: The Board may upgrade his discharge to fully Honorable at its discretion. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the medical opinion finding insufficient evidence to support that the applicant had a condition which failed medical retention standards at the time of separation. The Board determined he was discharged and provided an under honorable conditions (General) characterization of service. However, the circumstances surrounding his discharge are unknown. The Board agreed the burden of proof rest on the applicant; however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions of a correction of his records to show his narrative reason for separation as “Disability – Permanent”, alternatively, a retroactive referral to the Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB) nor an upgrade of his discharge. Based on this, the Board determined relief was not warranted and denied relief. 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. 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 (AR) 600-8-4 (Line of Duty Policy, Procedures, and Investigations), prescribes policies, procedures, and mandated tasks governing line of duty determinations of Soldiers who die or sustain certain injuries, illnesses, or diseases. Chapter 5 (Line of Duty Determination Procedures for Soldiers of the Army National Guard and U.S. Army Reserve) states a line of duty investigation must be completed promptly, as the determination will impact the Soldier’s eligibility for Federal benefits, such as access to medical care, compensation, and disability entitlements. The line of duty will not be entered into the system of record until all required documentation is received, except in emergent care. A Soldier will not be separated or retired, without the Soldier’s consent, while a line of duty determination, MEB, or PEB is pending unless otherwise permitted by law. A formal line of duty is required for disease incurred while performing annual training, inactive duty training, or ordered to active duty for less than 30 days. 2. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) prescribes Army policy for the disability evaluation and disposition of Soldiers who may be unfit to perform their military duties due to physical disability. Paragraph 4-7 (Medical Evaluation Board (MEB) Policy) states an MEB is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per AR 40-501 (Standards of Medical Fitness). Paragraph 4-19 (Physical Evaluation Board (PEB) Policy) states PEBs determined fitness for purposes of Soldiers retention, separation or retirement for disability under 10 USC, Chapter 61, or separation for disability without entitlement to disability benefits under other than 10 USC, Chapter 61. //NOTHING FOLLOWS//