IN THE CASE OF: BOARD DATE: 25 January 2022 DOCKET NUMBER: AR20210007256 APPLICANT REQUESTS: in effect, a physical disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) online application * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Rating Decision 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 Army Board for Correction of Military Records (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 she requests her discharge be re-characterized as permanent disability retirement effective the date of her original discharge date. Her mental health disorder was misdiagnosed prior to her discharge after multiple deployments in combat zones. She is currently diagnosed with posttraumatic stress disorder (PTSD) after appealing with the VA as a veteran. 3. The applicant underwent a medical examination for the purpose of enlisting in the Army on 17 February 2005. Her DD Form 2808 (Report of Medical Examination) shows no significant defects and she was found qualified for service. Her physical profile (PULHES) showed 1-1-1-1-1-1. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 4. The applicant enlisted in the United States Army Reserve on 1 March 2005 for a period of 8 years in the delayed entry program (DEP). She was discharged from the DEP enlisting in the Regular Army for a period of 5 years on 17 March 2005. 5. The applicant’s Enlisted Record Brief (ERB), dated 31 March 2011 shows the applicant served in Iraq from 16 September 2007 to 8 December 2008 and Afghanistan from 14 February 2010 to 15 February 2011. Her ERB also shows her PULHES as 2-1- 1-1-1-1 and her last physical exam as 13 January 2011. 6. The applicant was honorably released from active duty and transferred to the Ready Reserve on 15 May 2011 for completion of required active service. Her DD Form 214 shows she served in a designated imminent danger pay area, service in Iraq from 16 September 2007 to 8 December 2008, and Afghanistan from 14 February 2010 to 15 February 2011. 7. Orders D-03-Xxxxxx show the applicant was honorably discharged from the Ready Reserve on 5 March 20XX. 8. The applicant provided a copy of her VA Rating Decision dated 11 April 2018. It states the evaluation of PTSD with unspecified anxiety disorder and insomnia (previously rated as unspecified anxiety disorder, adjustment disorder claimed also as depression and anxiety), which was rated 30 percent disabling, was increased to 100 percent effective 15 February 2018. 9. 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. 10. 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. 11. 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. 12. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) indicates she was seen for marital problems on 27 Mar 2007 and 2 follow-up appointments. On 25 Aug 2009, the applicant was seen in by the Family Advocacy Program due to being alleged victim of intimate partner abuse. On 2 Nov 2009, she was seen as a walk-in. She reported prior involvement with FAP and current involvement with child protective services (CPS) and FAP. She stated she was going through a divorce and her child has been taken away by CPS and place with her maternal grandmother in Colorado. She reported being overwhelmed with stress and being in FAP treatment group triggers her emotions. She was diagnosed with Adjustment Disorder. 2. On 14 Dec 2009, she was evaluated by a psychiatrist. He confirmed the diagnosis of Adjustment Disorder and started her on anxiety medication. On 1 Feb 2010, she reported improvement in sleep on Doxepin. On 19 Jan 2011, she was seen in behavioral health after returning from deployment 2 days prior. She reported coming back early from deployment due to pregnancy. She came by on the advice of her 1SG. She has decided to get an abortion because she almost died giving birth to her first child. On 25 Jan 2011, she was seen for follow-up. The applicant reported this was her 3rd abortion and she was not in any great distress. The provider informed her she could return for services as needed. On 9 Feb 2011, she completed Part I of her separation physical and part II on 30 Mar 2011. 3. A review of JLV indicates the applicant received a service connected disability rating of 30% for Unspecified Anxiety Disorder, Adjustment Disorder effective 16 May 2011. Effective 15 Feb 2018, her rated condition was changed to PTSD with unspecified anxiety disorder and insomnia and increased to 100% rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of her discharge. The applicant met retention standards at the time of her discharge. It is acknowledged that the applicant has a service-connected disability of 100% for PTSD. 4. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. It is important to understand that the VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DoD). In essence, the VA will compensate for all disabilities felt to be unsuiting. The DoD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting. In addition, the role of compensating for post-separation progression or complications of service-connected conditions was granted by Congress to the Department of Veterans Affairs and not a function or role of the DoD. The applicant was evaluated by behavioral health providers prior to her discharge and met retention standards. Medical retirement/disability is not warranted. 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 applicant’s contentions, the military record, and regulatory guidance were carefully considered. Board members noted the applicant's submission of her VA Rating Decision dated 11 April 2018 that states the evaluation of PTSD with unspecified anxiety disorder and insomnia (previously rated as unspecified anxiety disorder, adjustment disorder claimed also as depression and anxiety), which was rated 30% disabling, was increased to 100% effective 15 February 2018. However, 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. The statute permits 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. Board members reviewed and agreed with the medical reviewer that the applicant was evaluated by behavioral health providers prior to her discharge and met retention standards and that medical disability separation is not warranted. 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. Title 10, USC, 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 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 (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. 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. 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. 5. Title 38 U.S. Code 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. 6. Title 38 U.S. Code 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) AR20210007256 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1