ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 March 2022 DOCKET NUMBER: AR20210010498 APPLICANT REQUESTS: The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing his reentry eligibility (RE) code from “RE-4” to “RE-1.” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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 he is requesting a change of his RE code because he would like to continue serving in the military. He could still serve; he just cannot be an engineer. When he started having breathing trouble he was told to “just suck it up.” He believes if he were re-evaluated he could pass the test and be able to serve. He would like to be given a second chance. He would have liked to been reclassified, but his first line [chain of command] was scary. He was threated that he would get chaptered if he did not take the medical evaluation board (MEB). Before getting out he was not given an Army Physical Fitness Test (APFT) to see what he could do. He cannot run, but he can still go to the field. When he left Texas and returned to New York he felt fine. Personally he believes it was the environment. He would like to take an APFT. Other people have been given a second chance, but with him having asthma flare ups in certain environments he cannot continue to serve. He was told the only way he can rejoin the military is if he gets his RE code changed or get a waiver. He is only age 25 and would like to retire from the military. 3. On 25 April 2016, the applicant enlisted in the Regular Army for 3 years and 16 weeks in pay grade E-1. He held military occupational specialty (MOS) 12B (Combat Engineer). On 21 August 2016, he was assigned to Fort Hood, TX, with duties in his MOS. He served in Kuwait from 20 February through 23 May 2017. 4. His Integrated Personnel Electronic Records Management System contains: a. Informal Physical Evaluation Board (PEB) Proceedings, confirming on 5 November 2018, a PEB convened and found the applicant physically unfit and recommended a rating of 30% and that the disposition be permanent disability retirement. Additionally, the PEB shows in: (1) Disability – Asthma (MEB) DX1 – The Solider sought care from his primary care manager in January 2017 for shortness of breath while running at Fort Hood, TX. The Soldier was seen for the condition again while in Kuwait in April 2017. Despite treatment by means of medication, the condition has not improved. In accordance with (IAW) Department of Defense Instruction (DODI) 1332.18, Enclosure 3, App. 2, paragraph 2.a., this Soldier is unfit because DA Form 3349, physical profile limitations associated with this condition make this Soldier unable to reasonably perform duties as required by primary MOS (PMOS) 12B. The Soldier's condition prevents him from performing DA 3349, Physical profile, Section 4 functional activity 24 f., live and function, without restrictions in any geographic or climatic area without worsening condition. (NARSUM, DA 7652, DA 3349, DA 3947, VA C&P Exam, VA Rating Decision). (2) Medical Conditions Determined Not to Be Unfitting – In full consideration of DODI 1332.18, Enclosure 3, App. 2, to include combined, overall effect, the following listed conditions are not unfitting. This is because the MEB indicates these conditions meet Army Regulation (AR) 40-501, Chapter 3, Medical Fitness Standards; none are listed on the DA Form 3349, physical profile as preventing the Soldier from performing one or more section 24 (a - f) functional activities; and there is no evidence to indicate that performance issues, if any, are due to these conditions. The Soldier is fit for MEB Dx 2-4 (patent foramen ovale; lumbar strain; and adjustment disorder with anxiety). (3) Administrative Determinations – The PEB makes the following findings: The disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war (5 USC 8332, 3502, and 6303). (This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service.) (4) Evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or Reserve thereof, or the NOAA or the USPHS on 24 September 1975. (5) The disability did not result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216. (6) Instructions and Advisory Statements – This case was adjudicated as part of the Integrated Disability Evaluation System (IDES). As documented in the Department of Veterans Affairs (DVA) Memorandum, dated 2 November 2018, DVA determined the specific VASRD code(s) to describe the Soldiers condition(s). The PEB determined the disposition recommendation based on the proposed DVA disability rating(s) and IAW with applicable statutes and regulations. (7) The applicant concurred with the PEB findings, waived a formal hearing of his case, and digitally signed the PEB proceedings. On the same date he declined to request reconsideration of his VA Rating. b. Orders 352-0152, Headquarters III Corps, Fort Hood, TX, confirming he was released from assignment and duty because of a physical disability incurred while entitled to basic pay and under conditions that permit permanent retirement for permanent disability. His effective date of retirement was 30 January 2019 and he was placed on the retirement list on 31 January 2019 with a 30 percent disability rating. His disability was based on an injury or disease received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law: No disability resulted from a combat related injury as defined in 26 USC 104. 5. Accordingly, on 30 January 2019, he was retired under the provisions of chapter 4, AR 635-40. His awards are listed as the National Defense Service Medal, Global War on Terrorism Expeditionary Medal, and Overseas Service Ribbon. It also shows in: * Remarks, “Served in Designated Imminent Danger Pay Area//Service in Kuwait 20 February 2017 through 23 May 2017 * Type of Separation, Retirement * Character of Service, “Honorable” * Separation Authority, “AR 635-40, chapter 4” * Separation Code, “SEJ” * Reentry Code, “4” * Narrative Reason for Separation, “Disability, Permeant (Enhanced)” 6. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) according to the provisions of Title 10, USC, chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18. It states: a. The mere presence of an impairment does not, itself, justify a finding of unfitness because of physical disability. In each case it is necessary to compare the nature and degree of physical disability present the requirements of the duties the Soldier reasonably may be expected to perform because of tier office, grade, rank or rating. To ensure all Solders are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in AR 40-501. These guidelines are used to refer Soldier to an MEB. b. 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. An enlisted Soldier who reenlistment has not been approved before the end of his or her current enlistment, is not processing for separation; therefore, this rule does not apply. The presumption of fitness may be overcome if the evidence establishes that: (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier's physical conditions occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. d. The fact that a Soldier has a condition listed in the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) does not equate to finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Solder unable to perform the duties of their office, grade, rank, or rating, in such a way as to reasonably fulfill the purpose of their employment on active duty. e. Provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB. Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and MOS with the medically-disqualifying condition. The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 7. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code “SEJ” is the appropriate code to assign Soldiers separated under the provisions of AR 635-40, chapter 4, Disability, Permeant (Enhanced).” 8. The applicant argues that his DD Form 214 should be corrected by changing his RE code from “RE-4” to “RE-1” to make him eligible for reenlistment. However, the SPD/RE Code Cross Reference Table stipulates RE code “4” was to right code to be assigned to members separated with the SPD code of “SEJ.” 9. In reaching its determination, the Board can consider the applicant's petition, his submissions, and service record, in light of the published DOD guidance on equity, injustice, or clemency. 10. 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), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests a change in reentry code to allow him to rejoin the military. He stated that his Asthma kept him from passing the APFT. He also stated that before getting out he wasn’t given an APFT test to see what he could and couldn’t do. He believes that he can run as well as perform in the field. And finally, he stated that he felt fine when he returned to New York. He would like to be given another chance to have a career in the Army. a. In the 28Aug2015 Report of Medical History (for enlistment), the applicant endorsed good health and that he wore glasses. He also stated that he had a history of a cut in the left eye (the examiner clarified that the laceration was left cheek below the eye, age 6). The 28Aug2015 Report of Medical Exam showed a 3 cm brown birthmark lateral to right scapula; 2 cm birthmark left mid biceps; piercing left ear lobe; 2.5 cm scar inferior to left eye; 3 x 10 cm scar lateral lower leg; burn scar left posterior medial wrist; 4 cm scar brown, right anterior mid thigh; superior to above scar, another 7 cm scar right anterior thigh; 12 cm diagonal scar right anterior forearm; Moderate, Asymptomatic Pes Planus. Summary of defect and diagnosis: Myopia-Corrected. He wore glasses since age 12. Physical profile was PULHES 111111. He was deemed qualified for service. b. Pertinent medical records while in service (1) 15Mar2018 Darnall AMC Fort Hood. He was originally seen in the Pulmonary Clinic in July 2017. He was referred for problems with dyspnea on exertion, and was diagnosed with asthma in Kuwait after reportedly having a positive methacholine bronchoprovocation test. Because of the positive result, he was given early redeployment. He reported no breathing problems as a youth even though he was very active in sports. After basic training, and shortly following his arrival to Fort Hood, he began noticing problems with dyspnea purely with exertion. This continued into his deployment. His co-morbidity condition is allergies which was mostly seasonal in nature. (2) 19Oct2018 (signature date) MEB NARSUM (narrative summary) annotated that the Pulmonary Function Tests (PFTs) completed on 05Jul2017, showed FEV1 of 76. The overall impression was “normal spirometry, without evidence of obstruction”. On 31Aug2017, PFTs were repeated, and again the test was interpreted as normal; however, the Pulmonologist did diagnose him with asthma, heart murmur, and allergic rhinitis. (3) The 05Nov2018 Informal PEB found the Asthma condition unfitting for continued military service. The PEB narrative indicated that he had Asthma related problems while at Fort Hood as well as while in Kuwait. Recommended disposition was permanent disability retirement at 30%. The following conditions were found NOT unfitting: Patent Foramen Ovale; Lumbar Strain; and Adjustment Disorder. The applicant concurred with PEB findings and waived a formal hearing of his case. He did not request for the VA to reconsider his rating. c. Pertinent medical records and related after discharge from service on 30Jan2019 (1) 03Mar2020 Darnell AMC Emergency Department. He was seen for breathing difficulties. Diagnoses: Mild Persistent Asthma; and Acute Bronchospasm (2) 11May2020 Secure Messaging note. The applicant called in stating that for the past few days he was having breathing trouble and his inhaler was not helping. (3) 07Jul2020 Central TX VA Pulmonary Note. Overall asthma symptoms were better after last visit. However, did have coughing with lying down. (4) 08Oct2020 Central TX VA Pulmonary Note. He was seen for breathlessness. Since the last clinic visit, his symptoms had been the same. He was coughing at night and in the morning. Sometimes he stayed up late due to difficulty breathing. (5) 30Jun2021 Upstate NY VA BU Pulmonary Outpatient Note. Pulmonary Function Test results: Moderate airways obstruction (FEV1 60-69% predicted); moderate restrictive defect (TLC 60-69% predicted); and severely reduced diffusing capacity for carbon monoxide (DLCO: 40% predicted). d. He developed breathing symptoms in Kuwait, they continued in Ft. Hood, and persisted in New York as well. JLV search revealed that the rating for Asthma increased from 30% at the time of discharge from service, to current rating at 60%. The applicant requests change in reentry code to allow him to rejoin military service. Currently, his DD Form 214 shows reentry code 4 (normally not eligible to reenlist, nor join another service. Usually will require an Exception to Policy waiver to reenlist). Recommendation: In the best entrance of the applicant and the government, no change is recommended to the reentry code. 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, a medical review, and regulatory guidance were carefully considered. The Board understands his willingness to return to duty; however, based upon a preponderance of the evidence, the Board determined the appropriate Reentry Code was listed to reflect his placement on the PDRL barring his reentry into military service. 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. X 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 (Medical Fitness Standards for Retention and Separation, Including Retirement), provides a listing of all medical conditions and specific causes for referral to an MEB. It states: a. The various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for all enlisted Soldiers of the Active Army, Army Reserve National Guard, and U.S. Army Reserve. The medical conditions and physical defects, individually or in combination, are those, that: (1) Significantly limit or interfere with the Soldier's performance of their duties. (2) 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. (3) May compromise the health or well-being of other Soldiers. (4) May prejudice the best interests of the Government if the individual were to remain in the military Service. b. Soldiers with conditions listed in chapter 3, who do not meet the required medical standards will be evaluated by an MEB. Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from service. Physicians are responsible for referring Soldiers with conditions listed in chapter 3 to an MEB. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the PDES according to the provisions of Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18. It states: a. The mere presence of an impairment does not, itself, justify a finding of unfitness because of physical disability. In each case it is necessary to compare the nature and degree of physical disability present the requirements of the duties the Soldier reasonably may be expected to perform because of tier office, grade, rank or rating. To ensure all solders are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501. These guidelines are used to refer Soldier to an MEB. b. 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. When a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. An enlisted Soldier who reenlistment has not been approved before the end of his or her current enlistment, is not processing for separation; therefore this rule does not apply. The presumption of fitness may be overcome if the evidence establishes that: (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier's physical conditions occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. d. The fact that a Soldier has a condition listed in the VASRD does not equate to finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Solder unable to perform the duties of their office, grade, rank, or rating, in such a way as to reasonably fulfill the purpose of their employment on active duty. e. Provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him/her and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB. Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and MOS with the medically-disqualifying condition. The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 6. Title 10, U.S. Code, chapter 61, provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty. However, the disability must have been the proximate result of performing military duty. It further provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses. //NOTHING FOLLOWS//