ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 February 2022 DOCKET NUMBER: AR20210010329 APPLICANT REQUESTS: physical disability retirement in lieu of an honorable discharge due to expiration term of service (ETS) and personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . self-authored statement . County Veteran Service Officer’s letter . wife’s letter . DD Form 214 (Certificate of Release or Discharge from Active Duty) . Headquarters, 88th Regional Readiness Command Orders 07-283-00017 . seven Department of Veterans Affairs (VA) letters FACTS: 1. The applicant did not file within the 3-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: a. He is requesting medical retirement from the U.S. Army Reserve (USAR). The provided documents show he had been admitted to the Mental Health Ward of Battle Creek VA Medical Center (VAMC) with suicidal tendencies, severe depression, debilitating post-traumatic stress disorder (PTSD) and suffering from a traumatic brain injury (TBI), when his USAR contract was allow to expire and he ETSd without a Medical Evaluation Board (MEB) or review of his medical condition and mental state. b. He has a 100 percent disability rating from the VA since 31 July 2001 and was granted total disability individual unemployability (TDIU). His USAR unit out of Bay City, MI was aware of his hospitalization and the unit was at weekend training when two members of his unit visited him at that facility. c. He had obtained his journeyman plumber/pipefitter/steamfitter license and was working as a plumber, but due to the TDIU and his VA-rated issues, he is no longer able to work. He has since lost his plumbing license, has been found incompetent, and is no longer able to own or purchase a firearm due to his mental health status. Due to his VA service-connected issues, he is not able to work in his desired field or obtain further training in that field. d. The delay in making his request is due to the numerous times he has been at the Battle Creek VAMC and the ensuing treatments following his release from the Battle Creek VAMC facility. Their children were ages 4 and 6 at the time all this was happening and his wife was still working. This was brought to light by a recent VA denial of educational benefits for their son on 26 March 2021. e. He is requesting the Board review his case and grant him a medical retirement from the USAR based on his service in Operation Iraqi Freedom (OIF) and his subsequent service-connected conditions. 3. A DD Form 4 (Enlistment/Reenlistment Document) shows the applicant enlisted in the USAR on 16 August 1996, for a period of 8 years. A second DD Form 4 shows on 26 August 2004 he reenlisted in the USAR for a period of 3 years. He was awarded the military occupational specialty (MOS) 52D (Power Generator Equipment Repairer) 4. A DD Form 214 shows the applicant was ordered to active duty in support of OIF on 16 October 2004, with service in Kuwait/Iraq form 30 November 2004 through 4 November 2005. He was honorably released from active duty after 1 year, 1 month, and 17 days of net active service this period on 2 December 2005, due to completion of required active service, and transferred back to his USAR unit. 5. The applicant’s records contain two DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), which show the following: a. The NCOER covering the period from February 2005 through January 2006 shows the following: . he was evaluated in his principle duty title of Power Generator Equipment Repairer in the duty MOS 52D . he was rated “excellence” or “success” in all “Values/NCO Responsibilities” . he passed his APFT in August 2005 . one of his Rater’s comments states he maintained a high standard of physical and mental fitness . his Senior Rater rated him as “Successful/2” for overall performance and “Superior/2” for overall potential for promotion and/or service in positions of greater responsibility b. The NCOER covering the period from February 2006 through July 2006 shows the following: . he was evaluated in his principle duty title of Power Generator Equipment Repairer in the duty MOS 52D . he was rated “success” in all “Values/NCO Responsibilities” . he passed his APFT August 2005 . one of his Rater’s comments states he lacked in performance as a Reserve Soldier; he failed to monitor the battle assembly schedule . his Senior Rater rated him as “Successful/2” for overall performance and “Superior/2” for overall potential for promotion and/or service in positions of greater responsibility 6. Headquarters, 88th Regional Readiness Command Orders 07-283-00017, dated 10 October 2007, honorably discharged the applicant from the USAR. 7. The applicant’s available service records do not show: . he was issued a permanent physical profile rating . he suffered from a medical condition, physical or mental, that affected his ability to perform the duties required by his MOS and/or grade or rendered him unfit for military service . he was diagnosed with a medical condition that warranted his entry into the Army Physical Disability Evaluation System (PDES) . he was diagnosed with a condition that failed retention standards and/or was unfitting 8. A VA letter, dated 27 May 2008, shows the following: a. The applicant was awarded a service-connected disability rating for PTSD in the following amounts: . 70 percent effective 31 July 2007 . 100 percent effective 9 November 2007 . 70 percent 1 January 2008 . 100 percent effective 5 March 2008 . 70 percent effective 1 June 2008 b. The VA determined the following conditions were not related to is military service, therefore service-connection could not be granted: . cubital tunnel syndrome of the 4th and 5th finger, left hand . cubital tunnel syndrome of the 4th and 5th fingers, right hand . refractive error c. The VA deferred a decision on the following conditions because they needed additional information or evidence: . hearing loss and tinnitus . left testicle pain . TBI 9. The applicant provided numerous additional letters and other correspondence from the VA, as follows: a. A VA letter, dated 4 December 2009, shows the applicant’s combined service-connected disability evaluation was 100 percent and that he was being paid at the 100 percent rate because of unemployability due to his service-connected disabilities. b. A VA Rating Decision, dated 1 July 2011, shows the applicant’s evaluation of PTSD was decreased from 100 percent disability to 70 percent. c. A VA letter, dated 19 November 2019, shows the applicant’s combined service-connected disability evaluation was 80 percent effective 1 December 2018 and that he was being paid at the 100 percent rate because of unemployability due to his service-connected disabilities. d. AVA letter, dated 26 March 2021, shows the applicant’ claim for benefits under the Dependents’ Educational Assistance program was denied because to be eligible for this education benefit the veteran must have a permanent and total 100 percent service-connected disability. e. Email correspondence from the VA pertaining to GI Bill benefits, dated 14 April 2021, advises that the disability rating received from the VA for compensation/pension has no bearing on eligibility percentage level of educational benefits. In order to be 100 percent eligible for education benefits, a veteran had to have been released from active duty due to a service-connected disability. 10. The applicant provided a letter from his County Veteran Service Officer, dated 23 April 2021, submitting a letter written by the applicant’s wife along with selected pages from his VA medical file, requesting a review of his release from the USAR, reiterating the points made in the applicant’s letter to the Board, as discussed above. 11. The applicant’s wife wrote a letter on behalf of the applicant, requesting a change to his honorable administrative discharge from the USAR at the time of his ETS to a physical disability retirement. a. She states the applicant was sent by ambulance to the Battle Creek VA mental institution on 29 June 2007, where he was treated for suicidal tendencies, severe depression, severe PTSD and paranoia. He stayed in the mental institution for 6 weeks and then went directly to inpatient PTSD therapy at the Battle Creek VAMC and completed all the PTSD tracks through the inpatient program. b. He later received an initial disability rating through the VA of 100 percent for PTSD, 10 percent for tinnitus, 10 percent for hearing loss, 10 percent for cubital tunnel syndrome effective 31 July 2007. Later, on 9 April 2008, he received a 10 percent rating for TBI. He currently has a combined service-connected disability rating of 80 percent with an unemployable status. c. The applicant’s USAR unit did not provide for a MEB or physical evaluation or put him before any type of review board. His unit was aware of his hospitalization and instead of granting him an opportunity for a medical retirement, they allowed his contract to come to a completion. 12. 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. 13. 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. 14. 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. 15. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. The Armed Forces Health Longitudinal Technology Application (AHLTA), Federal Electronic Health Record (FEHR) & Health Artifacts Image Solutions (HAIMS) have no records for this applicant. A review of JLV indicates the applicant was seen in the VA emergency room on 31 May 2007 for non-cardiac chest pain, Depression and possible PTSD he was discharged the next day and referred to outpatient behavioral health. (1) On 15 Jun 2007, he was seen in the outpatient clinic to initiate treatment. He reported he deployed to Baghdad, Iraq as a generator mechanic. H reported seeing the results of IED damage but wasn’t in combat. He reported depression, feelings of hopelessness and fears his depression is affecting his job (plumber). He was diagnosed with Dysthymic Disorder with possible PTSD. On 29 Jun 2007 he reported increased depression and past losses (death of his mother and grandfather. He was admitted to Battle Creek VAMC due to severe depression. He was discharged on 20 Aug 2007 with diagnoses of PTSD and Major Depressive Disorder (MDD) and a plan for him to return to Battle Creek in October to complete the PTSD track. His provider noted some concerns that he may not be stable enough to tolerate life outside of the hospital. On 5 Sept 2007, his provider provided documentation that he need to continue on medical leave from his civilian job as he was not stable enough to work. (2) On 9 Nov 2007, he was readmitted to the psychiatric ward and enrolled in the residential PTSD treatment program. Treatment note from 6 Dec 2007, indicates the applicant was still not able to return to work but was discharged and transitioned back to outpatient treatment. The applicant has a service connected disability rating of 70% for PTSD effective 31 Jul 2007. 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 his discharge. Based on the severity of his symptoms requiring multiple hospitalizations and his inability to return to his civilian job, he would not have met retention standards at the time of his discharge. b. Recommend referral of his case to the IDES office for their consideration. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. a. 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. b. The Board considered the applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board noted that his disability retirement request is premature. He will first have to be diagnosed with a medical condition that, if failed retention standards, would need to be referred to a physical evaluation board for determination of fitness. The Board noted that the applicant has a service connected disability rating of 70% for PTSD effective 31 Jul 2007. In accordance with the September 2014 Secretary of Defense Liberal Guidance Memorandum and the August 2017, Clarifying Guidance there is documentation to support a behavioral health diagnosis at the time of his discharge. Based on the severity of his symptoms requiring multiple hospitalizations and his inability to return to his civilian job, he would not have met retention standards at the time of his discharge. Board members agreed that his case should be referred to the IDES office for their consideration. If and when a determination of fitness is made, the IDES will determine his disposition. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF XX: XX: XX: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Legacy Disability Evaluation System (DES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his type of discharge without evaluation under the IDES. X CHAIRPERSON 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 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 (Disability 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 a Medical Evaluation Board (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. 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. 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. c. Chapter 8 (Reserve Components), in effect at the time, provides guidance for Reserve component members eligible for physical disability processing in accordance with this regulation. (1) When a commander or other appropriate authority believes a Reserve component member is unable to perform the duties of his office, grade, rank, or rating because of physical disability resulting from an injury determined to be the proximate result of performing active duty (30 days or less), inactive duty training, or active duty under the authority of Title 10 U.S. Code, he will refer the member for medical evaluation. (2) If the result of the medical evaluation indicate the member is not qualified to perform his military duties he will be referred to a MEB. (3) If the MEB finds the member’s physical disability is the result of a disease not directly caused by an injury, he will be processed in accordance with the provisions of paragraph 6-8, where he might request continuance in the service in lieu of separation. (4) If the MEB finds the member’s physical disability is the result of an injury or disease directly caused by an injury the case will be referred to a PEB. 4. Army Regulation 40-501 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, Reserve Component Soldiers 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 Reserve Component per Army Regulation 135–175 (Separation of Officers), Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative Separations), or other applicable Reserve Component regulation. They will be transferred to the Retired Reserve only if eligible and if they apply for it. c. Reserve Component Soldiers 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. Reserve Component Soldiers 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 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 non–duty 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. 8. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//