IN THE CASE OF: BOARD DATE: 25 February 2022 DOCKET NUMBER: AR20210013308 APPLICANT REQUESTS: a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Excerpt Department of Veterans Affairs (VA) Decision dated 23 October 2020 * Four Letters of Support 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 he is requesting the narrative reason for his separation be changed to medical discharge. He was discharged for not being able to pass the running portion of the Army Physical Fitness Test (APFT). At the time he was having breathing problems which are outlined in his medical records. It had not been diagnosed at the time of his separation. On 27 October 2020, he was diagnosed with restrictive airway disease by the VA and deemed “service connected.” 3. The applicant provides: a. A DD Form 214 for his active service from 4 February 2013 through 13 June 2015. b. An excerpt of the VA Decision letter, dated 23 October 2020, shows the applicant received the following rating for his service connected disabilities effective 10 September 2020: * exercise induced dyspnea with restrictive airway disease – 30% * right index finger sprain – 10% * right knee strain – 10% * right long finger sprain – deferred * right little finger sprain - deferred c. Four letters of support describe the applicant as having a good work ethic, respectful, composed in difficult situations, he completes tasks in a timely manner, hardworking, trustworthy, honest and dependable, among other traits. * – Recommendation for Employment dated 19 March 2021 * – Character Letter dated 25 March 2021 * – Recommendation Letter dated 25 March 2021 * – Formal Recommendation dated 29 March 2021 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 4 February 2013. b. The service record includes the applicant’s medical evaluations for the purposes of enlistment which indicated he had no significant medical issues and he was generally in good health. * DD Form 2807-1 (Report of Medical History) dated 4 October 2012 * DD Form 2807-2 (Medical Prescreen of Medical History Report) dated 27 September 2012 * DD Form 2808 (Report of Medical Examination) dated 4 October 2012 c. Three DA Forms 705 (Army Physical Fitness Test Scorecard) show the applicant failed the two mile run on record APFTs for the following periods: * 30 September 2014 – 30 points * 14 November 2014 – 30 points * 3 March 2015 – 44 points d. Two DA Forms 268 (Report to Suspend Favorable Personnel Actions (FLAG)) indicated the applicant was flagged for APFT failure: * 30 September 2014 * 14 November 2014 e. A DA Form 4856 (Developmental Counseling Form), dated 3 March 2015, indicated the applicant was being counseled for his second APFT failure, flag initiation, and involuntary separation. The applicant agreed and signed on 4 March 2015. f. The applicant underwent a medical examination for the purpose of separation. The applicant initially listed breathing problems and sensitivity on his permanent crown. He further detailed he has a slight wheeze and was using an inhaler for his breathing issues, he hurt his right knee during combatives injuring his right knee ligament, he feels his chest tighten when he runs, and it gets hard to breathe when doing cardio. The physician notes indicated “exercise induced dyspnea, no findings on examination” with a further workup being unremarkable. No etiology or pain in chest, “likely normal psychologic response with mental fatigue.” He was marked “qualified for service.” * DD Form 2697 (Report of Medical Assessment) dated 18 March 2015 * DD Form 2807-1 dated 18 March 2015 * DD Form 2808 dated 30 March 2015 g. A DA Form 3822 (Report of Mental Status Evaluation), dated 19 March 2015, confirmed the applicant was referred for a mental evaluation to be cleared for administrative separation. The applicant was deemed: * fit for duty including deployment * no obvious cognition impairments and cooperative in behavior * normal perception and unlikely to be impulsive; not dangerous * he had the mental capacity to understand and participate in the proceedings * could appreciate the difference between right and wrong * met medical retention requirements * negative screening results for post-traumatic stress disorder and/or traumatic brain injury h. On 13 April 2015, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 13, for unsatisfactory performance. He acknowledged receipt of the notification of separation action on the same day. i. On 15 April 2015, after waiving consultation with legal counsel, he acknowledged: * he was not entitled to appear before an administrative separation board * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * he may be ineligible for many or all benefits as a Veteran under both Federal and State laws * he may apply to the ADRB or the ABCMR for upgrading * he is ineligible to apply for enlistment in the Army for 2 years after discharge j. His immediate commander initiated action to separate him under the provisions of AR 635-200, Chapter 13 for unsatisfactory performance. Specifically, the applicant failed to pass two consecutive APFTs on 14 November 2014 and 3 March 2015. The commander recommended an honorable characterization of service. k. Consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions AR 635-200, Chapter 13 for unsatisfactory performance. He would be issued an honorable characterization of service. l. Orders 125-0203, dated 5 May 2015, discharged the applicant from active duty with an effective date of 13 June 2015. m. He was honorably discharged from active duty on 13 June 2015. His DD Form 214 shows he completed 2 years, 4 months, and 10 days of active service with no lost time. He was assigned separation code JHJ and the narrative reason for separation listed as “Unsatisfactory Performance.” 5. The applicant's service record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 6. By regulation (AR 635-8), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 7. By regulation (AR 635-5-1), enlisted Soldiers receive separation codes in accordance with the guidelines published for separations per Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). The narrative reason for the separation will be entered in block 28 of the DD Form 214 exactly as listed in tables 2-2 and 2-3. Table 2-3 lists for the SPD code JHJ, the narrative reason “Unsatisfactory Performance,” under regulatory authority AR 635-200. 8. By regulation (AR 635-200), separation proceedings are required for Soldiers without medical limitations who have two consecutive failures of the Army physical fitness test per AR 350–1 or who are eliminated for cause from Noncommissioned Officer Education System courses, unless the responsible commander chooses to impose a bar to re-enlistment per AR 601–280 (RA Soldiers) or AR 140–111 (USAR AGR Soldiers). 9. By regulation (AR 40-501), medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects are causes for rejection or medical unfitness for these specialized duties. If the profile is permanent the profiling officer must assess if the Soldier meets retention standards. Those Soldiers on active duty who do not meet retention standards must be referred to a medical evaluation board. 10. By regulation (AR 635-40), the Army disability system 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 or her office, grade, rank, or rating. The regulation 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. 11. 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. 12. Title 38, United States Code, 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. 13. Title 38, Code of Federal Regulations, 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/her 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. 14. MEDICAL REVIEW: The Army Review Boards Agency (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: a. The applicant is applying to the ABCMR requesting a review of his narrative reason for his separation be changed to medical discharge. In essence, the applicant is requesting a referral to the Disability Evaluation System (DES). He states: “I was discharged for not being able to pass the running part of the PT Test. At that time I was having breathing problems which my medical records will show. I wasn't diagnosed yet and I was chaptered out. On October 27, 2020 I was diagnosed with Restrictive Airway Disease by the VA and that this was connected to my service.” b. The Record of Proceedings detailed the applicant’s military service and the circumstances of the case. The applicant’s DD 214 showed that he entered the regular Army on 4 February 2013 and was discharged honorably on 13 June 2015 under provisions provided in chapter 13 of AR 635-200, Personnel Separations – Active Duty Enlisted Administrative Separations (RAR 6 September 2011), for Separation for Unsatisfactory Performance. c. There were no medically related documentation available for review in iPERMS, ePEB, MEDCHART and JLV. d. The documentations in AHLTA showed that the applicant was being evaluated for the cause(s) of his dyspnea (difficulty breathing) between the period of 28 April 2014 to 26 November 2014. The applicant was on a temporary profile for PT3, UT3, LT3, H1, E1, S1 from3 June 2014 to 29 August 2014. There was no other profile documented or found in his medical record. e. The etiology of his dyspnea was not fully known. But, based on documentation available, lung etiology was deemed not the cause of his dyspnea. At that time, the applicant declined further work up for his dyspnea based on encounter in AHLTA dated 26 November 2014: (1) “Pt presents for follow up. Does not feel further evaluation for breathing difficulty is warranted as he is getting chaptered for failing PT tests. Pt states that he has had this dyspnea since he joined the Army and he does not see it changing anytime soon.” (2) “Visit for: administrative purpose: Soldier seemingly unconcerned with his chronic exercise related dyspnea. He is getting chaptered for failing PT tests. Pt is unconcerned at this point and states this issue has been present since entrance into the military. Pt will likely benefit from exiting service where he will not be expected to conduct cardioaerobic activity everyday. Do not feel any further workup required at this time.” f. With no further evaluation desired by the applicant as indicated above, there was no way to determine whether his dyspnea was the cause of his failure to pass the APFT or it was a military career termination medical condition for him. g. The applicant failed his run event his record APFTs on 30 September 2014, 14 November 2014, and 3 March 2015. First, he was flagged for his APFT failure on 30 September 2014. Second, he was flagged for involuntary separation on 14 November 2014. Lastly, he received a counseling for his second APFT failure and involuntary separation. The applicant acknowledged and accepted his deficiency on these counseling forms. h. His separation physical exam, dated 31 March 2015, revealed that he was qualified for service. i. His mental status evaluation on 19 March 2015 also cleared the applicant for administrative separation under AR 635-200, charter13. j. His commander notified him for separation under the provisions of AR 635-200, Chapter 13, on 13 April 2015: “I am initiating action to separate you for Unsatisfactory Performance. The reasons for my proposed action are: You have shown the inability to perform satisfactory by not progressing as a Soldier. As a result it has been determined that you are unqualified for further military service. Specifically, you have failed to pass two consecutive Army Physical Fitness Test on 30 September 2014 and 14 November 2014.” k. Based on the available documents in his supporting documents and in AHLTA for review, there were no indication that applicant had medical condition (s) that prevented him from passing his AFPT or failed a medical retention standard at the time of his separation. l. The DES compensates disabilities when they cause or contribute to career termination. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which may have been the cause for a prior medical separation. These roles and authorities are granted by Congress to the Department of Veterans' Affairs and executed under a different set of laws. m. Given the current documentation, it is the opinion of the ARBA Medical Advisor that a referral to a DES is not warranted. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, and regulatory guidance. The Board considered the applicant's statement, the medical records, and the review and conclusions of the medical reviewing official. Based upon a preponderance of the evidence, the Board concurred with the medical reviewer’s finding of insufficient evidence the contested medical conditions failed to meet retention standards during his period of service. Therefore, the Board determined referral to DES for consideration of a medical separation is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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, 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 13 of the regulation states a Soldier may be separated when it is determined that he/she is unqualified for further military service because of unsatisfactory performance. Paragraph 13-2 e. further noted initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the Army physical fitness test per AR 350–1 or who are eliminated for cause from Noncommissioned Officer Education System courses, unless the responsible commander chooses to impose a bar to re-enlistment per AR 601–280 (RA Soldiers) or AR 140–111 (USAR AGR Soldiers). 3. Army Regulation 635-8 (Separation Processing and Documents) states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provides separation program designator (SPD) codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The narrative reason for the separation will be entered in block 28 of the DD Form 214 exactly as listed in tables 2-2 and 2-3. Table 2-3 lists for the SPD code JHJ, the narrative reason “Unsatisfactory Performance,” under regulatory authority AR 635-200. 5. 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. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. 7. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 8. Department of Defense (DoD) Directive-Type Memorandum (DTM) 11-015 (Disability Evaluation System) explains the Integrated Disability Evaluation System (IDES). The version in effect at the time defined the IDES process and procedures. The guidelines within the DTM were incorporated in the DoD Manual Number 1332.18 (DES Manual: General Information and Legacy DES Time Standards). a. The IDES is the joint DoD-VA process by which DoD determines whether wounded, ill, or injured Service members are fit for continued military service and by which the DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 (Disability Evaluation System (DES)) and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. d. Within 15 days of receiving the proposed disability ratings from the Disability Rating Activity Site (D-RAS), the PEB will apply the raring using the diagnostic code(s) provided by the D-RAS to the Service Member’s unfitting conditions and publish the disposition recommendation. For example, if the PEB identifies a condition to the D-RAS as “schizophreniform disorder”, but the D-RAS rates the condition as “psychotic disorder NOS (VASRD 9210), the PEB will apply the rating as “schizophophreniform disorder rated as psychotic disorder NOS (VASRD 9210). e. Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. 9. 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. 10. 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. 11. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210013308 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1