IN THE CASE OF: BOARD DATE: 9 March 2022 DOCKET NUMBER: AR20210014452 APPLICANT REQUESTS: * retirement due to physical disability * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Standard Form (SF) 519-B (Radiologic Consultation Request/Report) * SF 600 (Chronological Record of Medical Care) * medical statement, dated 27 August 2020 * two third-party statements * Diagnostic Brain Report/Brain Perfusion Report FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U. S. 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 a medical retirement due to combat sustained injuries. He was not referred to a Medical Evaluation Board (MEB) for his combat injuries that include traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD), which was not proper. While he was stationed at Fort Hood, TX, he requested to his unit to be referred to an MEB but he was denied that right and discharged without receiving a medical evaluation. 3. The applicant enlisted in the Regular Army on 5 July 1990 for a period of 4 years. He was awarded military occupational specialty 19K (Armor Crewman) upon completion of initial entry training. He served in Southwest Asia in support of Operations Desert Shield/Storm from 1 January to 1 July 1991. 4. The applicant provided a SF 519-B and a SF 600 showing he underwent medical evaluations on 19 and 20 August 1993 due to being struck on the occipital region by a metal box while in his unit's arms room. 5. The applicant reenlisted on 30 March 1994 for a period of 3 years. On 21 October 1994, he extended his enlistment for a period of 16 months in order to fulfil the service remaining requirement (SRR) for an overseas tour in Europe. His new expiration term of service (ETS) was established as 29 July 1998. 6. On or around May 1995, the applicant received a reassignment notification and he was advised that in order to comply with the operational commitment, he must have a minimum of 36 months remaining to ETS as of July 1996. 7. On 15 March 1996, the applicant signed a DA Form 4991-R (Declination of Continued Service Statement (DCSS)) expressing his refusal to extend his enlistment or reenlist in order to comply with the operational commitment. 8. On 21 March 1996, the applicant submitted a DA Form 4187 (Personnel Action) requesting immediate discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-5, because he was unable to reenlist due to signing a DCSS. In his request, he acknowledged he understood that the separation prior to his normal ETS was for his own convenience. 9. On 1 April 1996, the applicant's request for immediate discharge was approved. His DD Form 214 shows he was released from active duty and transfer to the U.S. Army Reserve Control Group (Reinforcement) on 12 April 1996 by reason of non-retention on active duty. 10. The applicant's record on the U.S. Army Human Resources Command Soldier Management System shows his last physical examination took place on 12 April 1996 and that he was assigned a physical profile serial system (PULHES) code of "111111." 11. There is no evidence in the applicant's available records indicating he was unable to perform his military duties due to a medical disability. 12. The applicant provided: a. A medical statement, dated 27 August 2020, addressed to the Department of Veterans Affairs, indicating the applicant was diagnosed with TBI and PTSD and that he was exposed to commercial nerve gas after an installation was destroyed under combat conditions. b. Two third-party statements, provided by former members of his units, stating the he was injured in February 1991 as a result of Iraqi artillery fire and in August 1993 when he was hit in the head by an arms crate. c. A Diagnostic Brain Report/Brain Perfusion Report indicating he underwent a Quantitative Single Photon Emission Computed Tomography (qSPECT) on 7 August 2020. 13. 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 referral to the Disability Evaluation System (DES). b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 5 July 1990 and received an honorable discharge on 12 April 1996 under the separation authority provided by paragraph 16-5c of AR 635-200, Personnel Separations – Enlisted Personnel (26 May 1989): Early separation of personnel denied reenlistment. The narrative reason for separation is “Non-Retention on Active Duty”, and the separation code of MGF denotes “Non-Retention on Active Duty.” It shows the former armor crewman (19K) served in Southwest Asia from 1 January 1991 thru 1 July 1991 and again from 10 August 1992 thru 2 November 1992. c. The applicant received an assignment to Europe and was advised that he needed a minimum of 36 months remaining service as of 01 July 1996 in order to comply with this operational commitment. His current expiration of term of service (ETS) was 29 July 1998, and he declined to extend his ETS to at least 01 July 1999. d. On 21 March 1996, the applicant requested discharge from the Army under paragraph 16-5c of AR 635-200. He stated in his request. “I request immediate discharge as I will be unable to reenlist due to signing a declination of continued service statement. I understand that I am being separated before my normal ETS for my own convenience.” e. His request for separation with transfer to the Individual Ready Reserve was approved by the battalion commander on 1 April 1996. f. Because of the period of service, there are no encounters in AHLTA. g. Minimal medical documentation was submitted with the application. It shows the applicant sustained a contusion and superficial laceration on the back of his head from a metal box while in the ammunition room on 19 August 1993. Other than the contusion and laceration, no other injuries were noted and the examination was otherwise normal. He was treated conservatively, placed on 24 hour quarters, and directed to follow-up the following day. At this follow-up visit, the applicant complained of his head being sore. He denied dizziness or nausea. The examination was unchanged and he was placed on quarters for another 24 hours. There are no further contemporaneous clinical encounters. h. A provider memorandum dated 27 August 2020 states the applicant has been diagnosed with “Post Trauma Stress Disorder and Traumatic Brain Injury.” i. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. j. Review of his records in JLV shows he has been awarded two VA service- connected disability ratings, one of which is for PTSD. However, the DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. k. It is the opinion of the ARBA medical advisor that a referral of his case to the DES is not warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. The Board noted the applicant has been awarded two VA service- connected disability ratings, one of which is for PTSD. Upon further review of the applicant’s petition, available military records and the medical review the Board concurred with the advising official finding that a referral of his case to the Disability Evaluation System (DES) is not warranted. The Board found no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Based on this, the Board denied relief for retirement due to physical disability. 2. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. 3. 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. 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, U. S. Code, 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 601-280 (Army Retention Program) prescribes the criteria for the Army Retention Program. The regulation in effect at the time states in: a. Paragraph 4-6, an SRR is a Headquarters Department of the Army (HQDA) prerequisite for a Soldier to have a specified amount of remaining, contractual service, in order for an authorized action to be taken. Examples include: Continental United Sates (CONUS)/outside CONUS deployment, service school/course attendance, and selection for special duty assignment. b. Soldiers, other than those in their initial term, having 4 or more years of service for pay purposes at ETS, must take action to meet SRRs. This action is required regardless of the SRR start or report date, to include those after the Soldier's current ETS. Soldiers eligible to, but refusing to take action to satisfy military SRRs will be denied further service through the DA Form 4991-R. 3. Army Regulation 635-200, in effect at the time, states in paragraph 16-5, enlisted personnel may be discharged before ETS when they have received a bar to reenlistment. Members who perceive that they will be unable to overcome an HQDA bar to reenlistment will be allowed to be discharged immediately. Members may request immediate discharge within 60 days from receipt of the HQDA bar to reenlistment. Discharge must be accomplished no later than 6 months from the date of request. 4. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 5. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. The regulation in effect at the time states: a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB; when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination or directed by medical providers. 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 who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. The mere presence of impairment does not of 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 presents with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. d. When a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction inforce, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty, until he or she is referred to the PDES for evaluation for separation for reasons indicated above, creates a presumption that the member is fit for duty. 6. DA Pamphlet 40-502 (Medical Readiness Procedures) describes the processes and procedures for assessing, documenting, reporting, and administering medical readiness. Paragraph 4-3 (Physical Profile Serial System) states the basis for the physical profile serial system is the function of body systems and their relation to military duties. Profiling providers will use permanent profiles to describe and rate the function of the extremities, sensory organs, physical capacity, and mental health. The permanent physical profile has six functional areas "P–U–L–H–E–S" with four numerical designations used to reflect different levels of functional capacity. The determination of the numerical designation 1, 2, 3, or 4 evaluates the functional capacity of a particular organ or system of the body. The functional areas for consideration are: P – physical capacity or stamina, U – upper extremities, L– lower extremities, H – hearing and ears, E – eyes, S – psychiatric. An individual having a numerical designation of "1" on all factors describe a high level of medical fitness, deployable. 7. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014452 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1