IN THE CASE OF: BOARD DATE: 15 October 2021 DOCKET NUMBER: AR20210005239 APPLICANT REQUESTS: * service credit of 6 months for a regular retirement in lieu of medical retirement * a 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 * three DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) * DD Form 2808 (Report of Medical Examination) * two U.S. Army Human Resources Command (HRC) Decision Memoranda * two U.S. Army Physical Disability Agency (USAPDA) Decision Memoranda * Orders 170-0021, dated 19 June 2014 * DA Form 1508 (Statement of Service – For Computation of Length of Service for Pay Purposes) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * five applicant letters to remain in service * three letters of support * excerpt from Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement, or Separation), dated 8 February 2006 * Continuation on Active Duty/Active Reserve (COAD/COAR) Program Memorandum of Instruction (MOI), dated 14 April 2011 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 his service time reflect 20 years of service to allow him to apply for retirement. He was discharged Wounded Warrior Battalion (WWB) before he was healed, a full 6 months and 8 days prior to his eligibility for full retirement. a. He did not want to be discharged and could have continued working post-cancer, as he has done. He did not receive assistance in his efforts to remain in the military. The discharge resulted in him not being to receive medical care, including mental health care, until he was finally approved by the Department of Veterans Affairs (VA) several months later. During the same time, he was discharged, over half of his battalion was also discharged which led to an investigation of the WWB by the Inspector General (IG). b. He offers seven key points in his personal statement which summarizes the basis for his appeal: * leadership failed him by not assisting in his efforts to continue on active duty; he appealed numerous times to no avail * his physicians supported his request to remain on active duty, yet the decision lied on one Army civilian to destroy his career without meeting him * the Warrior Transition Battalion (WTB) intentionally discharged Soldiers to prevent the distribution of benefits under their budget * Report # GAO, dated July 2016, titled “Army Needs to Improve Oversight of Warrior Transition Units” at https://www.gao.gov/products/gao-16-583 * three approved physician statements confirmed he could continue to serve on active duty * the individual that recommended his medical retirement never met him and denied his request to continue on active duty; he was not given an option to appeal * he was diagnosed with post-traumatic stress disorder (PTSD) 6 months following his discharge; he was clearly showing symptoms in 2014 and received no treatment from the WTB c. The applicant believes if he would have been afforded an opportunity to receive treatment for his medical conditions, he would have met his retirement eligibility requirement and his service time would have exceeded 20 years. He was discharged prematurely. He remained in the WWB the last few years of his career. His chemo and radiation treatments were completed in May 2012 with no recurrences. In April 2014, he requested assistance from his social worker for depression and suicidal ideations and was encouraged to take time off. He took 30 days of leave and during that time he received notice that he would be discharged. He was barred from receiving medical assistance and was informed that because he was on “terminal leave” the staff was directed to push them out in order to provide resources to those that needed help as resources were limited. He finally received the assistance he needed after checking himself in to Tripler Army [Medical Center] for deep depression and suicidal ideations, once he was registered with the VA. It was then he was diagnosed with PTSD and is now at 100% disability rating. d. He was forcibly discharged by Dr. based on one document stating that his back was debilitating. She was not aware that the Army had documented his back condition in 2006 and he had passed all his flight physicals following the documented injury. He was still serving as a flight medic for over 10 years and had proven that he could manage his condition in his current role. He is ashamed and deeply hurt that anyone could consider him “deleterious” to the Army and would like his good name restored. He was retired with a total of 19 years, 6 months, and 9 days of service. It was less than 6 months to his 20-year retirement. He is requesting an allowance for the time he should have received treatment at the WTB to achieve his full 20 years and 1 day. 3. The applicant provides: a. The below listed documents to be referenced in the service record: * three DA Forms 2166-8 (NCOER) * Orders 170-0021, dated 19 June 2014 * DD Form 214 b. A DD Form 2808, dated 16 June 2011, indicated the applicant underwent a Class II, Annual Flight Physical. The hand written note on the document was illegible. c. Two HRC decision memoranda: * 10 April 2014 – the applicant did not meet COAD program criteria outlined in AR 635-40 and therefore, they were not able to adjudicate his application request * Not Dated – his condition did not meet the COAD program criteria as outlined in AR 635-40, paragraph 6-7 and his application was not disapproved, he simply did not meet the criteria d. Two USAPDA decision memoranda: * 17 April 2014 – his request for COAD was returned without action by HRC and he was required to begin retirement processing * 27 May 2014 – his request for reconsideration of COAD was returned without action by HRC and he was directed to continue with his transition processing e. A DA Form 1508, dated 19 June 2014, listed the applicant’s three periods of service: * U.S. Navy (Active) – 21 March 1995 to 12 August 1996 (1 year, 4 months, and 22 days) * U.S. Navy (Inactive) – 13 August 1996 to 15 August 1996 (3 days) * U.S. Army (Active) – 16 August 1996 to 29 September 2014 (18 years, 1 month, and 14 days) f. Five petitions from the applicant to continue on active duty. The applicant contended he had applied for COAD which was designated for Soldiers that had between 15 and 20 years of service, but were unable to perform up to Army standards. He believed he had a lot to contribute the military and was requesting to remain in service. The applicant provided a short summary of his service in the military and concluded that he believed the new regulation was a form of discrimination because he had not sustained a combat injury. The applicant’s letters were dated: * 3 May 2014 * 10 May 2014 * 19 May 2014 * 25 July 2014 * 25 July 2014 g. Three letters of support wherein the applicant highlights three physicians supported his request for COAD and recommended approval: * 1 May 2014 – Dr. Warrior Transition Clinic * 16 May 2014 – Dr. Radiation Oncology Service * 19 May 2014 – Dr. , Head and Neck Oncologic and Microvascular Surgery h. An excerpt from the 8 February 2006 version of AR 635-40, specifically Chapter 6, Continuation on Active Duty and Continuation on Active Reserve Status of Unfit Soldiers. i. COAD MOI, dated 14 April 2011, noted the primary objective of the program was to retain needed skills and experienced Soldiers determined unfit by the Disability Evaluation System (DES) as a result of combat injuries. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 16 August 1996. b. The applicant received four DA Forms 2166-8 prior to his discharge for the following periods: * 3 September 2008 thru 2 September 2009 – applicant served as a Aviation Medicine Clinic NCOIC and received “Fully Capable” from his rater and from his senior rater a “2” in success for overall performance and a “1” as superior for overall potential * 3 September 2009 thru 31 July 2010 – applicant served as a Healthcare NCO and received “Among the Best” from his rater and from his senior rater a “2” in success for overall performance and a “1” as superior for overall potential * 1 August 2010 thru 30 May 2011 – applicant served as a Company Training NCO and received “Fully Capable” from his rater and from his senior rater a “1” in success for overall performance and a “2” as superior for overall potential * 30 May 2011 thru 1 November 2011 – applicant served as an Air Ambulance NCO and received “Fully Capable” from his rater and from his senior rater a “3” in success for overall performance and a “3” as superior for overall potential c. A DA Form 199, showed the applicant’s conditions were evaluated by an Informal Physical Evaluation Board (PEB) on 11 December 2013. The PEB found the applicant unfit, recommended a combined rating of 40%, and that his disposition be permanent disability retirement. The medical conditions determined to be unfitting were C3-C5 cervical radiation neuropathy for squamous cell carcinoma of tongue (VASRD Code 8710 rated at 20%, left shoulder post radiation neuropathy for squamous cell carcinoma of tongue (VASRD Codes 5201-5003) rated at 10%, and intervertebral disk syndrome with degenerative arthritic changes of the lumbosacral spine (VASRD Codes 5243- 5242). The disability was not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and did not result from a combat related injury. The applicant did not concur and demanded a formal hearing on 27 December 2013. He did not request reconsideration of his VA ratings. Section VI (Medical Conditions Determined Not to be Unfitting) also listed the following medical conditions as meeting retention standards: * intervertebral disc syndrome with degenerative arthritis of the cervical spine * degenerative arthritis of left acromioclavicular joints * plantar fasciitis s/p calcaneal bone spur removal * achilles tendon spurs * chronic xerostomia (dry mouth) with pharyngeal phase dysphagia * bilateral tinnitus * mild sensorineural hearing loss bilaterally * temporomandibular joint disorder * sleep apnea * s/p tonsillectomy * allergic rhinitis * minimal septum deviation * bilateral Eustachian tube dysfunction * tension headaches * s/p vasovasotomy bilateral spermatic ducts * bilateral hallux valgus * thrombocytopenia * exercise induced asthma * scars * s/p surgical partial reception of tongue * bilateral pes planus d. Orders 170-0021, dated 19 June 2014, released the applicant from assignment and duty because of physical disability incurred while entitled to basic pay under conditions that permitted his retirement for permanent physical disability with a 40% disability rating effective 29 September 2014. e. He was honorably retired from active duty on 29 September 2014. His DD Form 214 shows he completed 18 years, 1 month, and 14 days of active service with 1 year, 4 months, and 22 days of prior active service. He was assigned separation code SEJ and the narrative reason for separation listed as “Disability, Permanent (Enhanced).” 5. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 6. By regulation (AR 635-40), the provisions of law in Title 10 U.S. Code on the retention of Soldiers on active duty after they complete 18 but less than 20 years of active service vary in addressing application to Soldiers who are determined unfit due to physical disability. a. The primary objective of COAD/COAR is to conserve manpower by effective use of needed skills or experience. A Soldier who is physically unqualified for further military service has no inherent or vested right to continuation. b. Continuation in a military status is generally subject to the Soldier’s consent. However, the Secretary of the Army (SA), or their designee, may involuntarily continue Soldiers determined unfit by the physical disability evaluation system (PDES) in consideration of their service obligation or special skill and experience. c. Normally, a COAD will be for any period of time up to the last day of the month in which the Soldier attains 20 years of active Federal service for purposes of qualifying for length of service retirement under Title 10, United States Code, Section 3911 or 3914 (10 USC 3911 or 3914). d. The fact that a Soldier has or has not applied for COAD/COAR will not influence the determination of fitness or percentage of the disability rating. 7. MEDICAL REVIEW: a. 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 for his service time to be backdated so that his time in service reflects 20 years, and then he can apply for a retirement pension. The applicant stated that he was medically retired from the Army through the Integrated Disability Evaluation System (IDES) while he was in the Wounded Warrior Battalion (WWB). He stated that his cancer treatment was completed in May of 2012 without any recurrence. He also stated that he was forced to retire reportedly because of a debilitating back condition. He asserts the injury was from 2006 and he had been managing his responsibilities in spite of his back without having to be restricted to a desk job. He said that he applied for COAD, but he was denied despite having the support of 3 military doctors. b. The applicant was diagnosed with metastatic squamous cell carcinoma in November 2011. He underwent left neck dissection on 14Dec2011, followed concurrently by 5 weeks of radiation and 3 cycles of chemotherapy. Once radiation and chemotherapy treatments were completed, the applicant entered the WTU (18Apr2012) for surveillance phase. Shortly after surgery, the applicant reported left neck and shoulder pain and weakness. Despite multimodality treatment to include physical therapy, acupuncture chiropractor; as well as yoga, he was never able to return to full duty. On 14Mar2013, radiation oncology referred him for a MEB because of continued reports of weakness, and limited range of motion in his neck and left shoulder which had resulted in significant weight lifting restrictions. He also had chronic back pain, which was first reported in November 2005 without known injury. He had exacerbations from time to time but in August 2012, the applicant reported increased back pain when he tried to increase activity. His back pain had failed to respond to conservative therapy and minimally invasive treatment. NARSUM notes indicated that due to his chronic neck and shoulder pain and weakness as well as the chronic low back pain; he was unable to effectively and safely perform several DA 3349 section 5 functional activities, as these activities may worsen and or exacerbate his physical conditions. Due to his chronic neck, shoulder and back conditions, his permanent physical profile prohibited lifting >20lbs. c. The PEB convened 11Dec2013, found the following conditions unfitting for continued military service: C3-C5 Cervical radiation neuropathy for squamous cell carcinoma of tongue at 20%; Left shoulder post radiation neuropathy for squamous cell carcinoma of tongue at 10%; and Intervertebral disk syndrome with degenerative arthritic changes of the lumbosacral spine at 10%. Since his case was adjudicated as part of IDES, the PEB received the ratings from the VA and applied the ratings per VA Rating Decision dated 21Nov2013. The applicant initially did not concur with the PEB findings and demanded a formal hearing of his case; but eventually withdrew his request on 06Feb2014. He did not request VA reconsideration of his ratings. The PEB recommended d. In regards to the applicant’s assertion that he was able to continue doing his job: He was in the WTU since April 2012, therefore, he did not receive any evaluations. He passed the last APFT on 29Oct2010. The NCO Evaluation Report 20110530 through 20111101, showed that he was on profile at the time. His Commander did not recommend his retention; they indicated that he was not performing duties in his MOS and was instead assigned to WTU to heal (DA Form 7652 dated 07May2013). According to his permanent physical profile, because of his unfitting conditions, he could not perform 6 or the 10 functional DA 3349 section 5 functional activities; and none of the APFT events. The applicant also asserted that he was discharged prematurely—before he was able to get well. However, review of his NARSUM notes and in-service treatment visits showed that he was receiving care for several chronic conditions while in the WTU from April 2012 until he was discharged. At the time of discharge, his conditions were assessed to be medically stable. e. The applicant also argued that he was sufficiently fit to continue on active duty, in the COAD program. It was noted that the head and neck oncology and microvascular surgeon (19May2014), and the radiation oncologist (16May2014), indicated in their letters of support, that continuing on active duty would not impact his cancer condition. However, it appeared from the review, that the main barrier to remaining on active duty was his residual neck and shoulder weakness and inability to bear weight. He was medically retired due to the effects of the treatment for his cancer, not for the cancer itself, which was in remission. The 01May2014 letter of support from Dr. who appeared to be applicant’s primary care physician, indicated that the applicant would do okay in a clinic or in an office type environment and that he was requiring medical appointments no more than once per week. However, despite being in the WTU, a protected environment, his back condition significantly flared and was recalcitrant to treatment and became unfitting for continued service. It was noted that shortly before discharge, the applicant was still reporting significant pain levels (6/10). In addition, the applicant visited the emergency room on 05Nov2014 complaining of 7/10 low back spasm pain for 10 days with no inciting event; despite having had an SI joint injection the day prior for radicular symptoms. Medical evidence does suggest as annotated in the applicant’s DA Form 199, that continuing on active duty would impose unreasonable requirements on the Army to maintain the applicant’s health, and further, may compromise the welfare of others. When he entered the WTU in 2012, he reported that he had 16 years’ time in service. At the time of discharge, the applicant stated he had more than 19 years of service. In the reviewer’s opinion, the applicant did not qualify for the COAD program due the severely limiting residuals from his cancer treatment, and his back symptoms. He was also appropriately processed through IDES and all of his medical conditions were duly considered during medical separation processing. BOARD DISCUSSION: 1. 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. 2. 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. Evidence of record shows the applicant was found medically unfit for military service by a properly constituted PEB, and was placed on the PDRL. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows an error or injustice occurred 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, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 3. 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. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, 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. c. Chapter 6 (Continuation on Active Duty and Continuation on Active Reserve (COAR) Status of Unfit Soldiers), prescribes the criteria and procedures under which Soldiers who have been determined unfit by the physical disability evaluation system may be COAD or in active reserve status (COAR) as an exception to policy. (1) The primary objective of this program is to conserve manpower by effective use of needed skills or experience. A Soldier who is physically unqualified for further military service has no inherent or vested right to continuation. (2) Continuation in a military status is generally subject to the Soldier’s consent. However, the SA, or their designee, may involuntarily continue Soldiers determined unfit by the PDES in consideration of their service obligation or special skill and experience. (3) Normally, a COAD will be for any period of time up to the last day of the month in which the Soldier attains 20 years of active Federal service for purposes of qualifying for length of service retirement under Title 10, United States Code, Section 3911 or 3914 (10 USC 3911 or 3914). d. Paragraph 6-7, states to be considered for COAD or COAR, a Soldier must be: (1) Determined unfit by the PDES for a disability that was not the result of intentional misconduct nor willful neglect, nor incurred during a period of unauthorized absence. (2) Basically stable or have a disability that is of slow progression according to accepted by medical principles. It must not be deleterious to the Soldier’s health or prejudicial to the best interest of the Soldier or the Army. For example, the disability must not require undue loss of time from duty for medical treatment. It must not pose a risk to the health or safety of other Soldiers. (3) Physically capable of performing useful duty in an MOS for which currently qualified or potentially trainable (to include re-classification). (4) Eligible under one or more of the criteria listed below: * for COAD, have 15 but less than 20 years of active Federal service; for COAR, have a total of 15, but less than 20 years of qualifying service for nonregular retirement * qualified in a critical skill or shortage MOS; such qualification must be confirmed in writing by the applicable personnel office and attached to the request; or * the disability resulted from combat or terrorism e. The fact that a Soldier has or has not applied for COAD/COAR will not influence the determination of fitness or percentage of the disability rating. 5. 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). 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. 6. 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, sexual assault, or sexual harassment. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005239 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1