IN THE CASE OF: BOARD DATE: 4 November 2021 DOCKET NUMBER: AR20210007226 APPLICANT REQUESTS: * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect his U.S. Army Reserve (USAR) service * retirement due to physical disability * guidance regarding approval of Combat-Related Special Compensation (CRSC) * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Rating Decision and Summary of Benefits * DD Form 214 * Enlisted Record Brief (ERB) * USAR reassignment orders * two DA Forms 4856 (Developmental Counseling Form) * DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) * Memorandum for Record * DA Form 4651 (Request for Reserve Component Assignment or Attachment) 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 is requesting guidance regarding approval of CRSC. Information regarding CRSC may be obtained by visiting the U.S. Army Human Resources Command (HRC) at: https://www.hrc.army.mil/content/CRSC%20(Combat- Related%20Special%20Compensation). This portion of the applicant's request will not be discussed further in this Record of Proceedings. 3. The applicant states he was mobilized with his disability, rated over 30 percent disabling, which should have initiated the medical board process and his placement on the Permanent Disability Retired List. His reenlistment ended on 28 December 2018 at which time he was 70-90 percent disabled as shown on his VA records. 4. The applicant enlisted in the Regular Army on 13 July 2010. He served in Afghanistan from 14 October 2011 to 10 October 2012 and from 3 January to 18 July 2015. 5. The applicant's DD Form 214 shows he was released from active duty and transferred to the USAR Control Group (Reinforcement) on 4 December 2015 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 16-7 (Early separation due to reduction in force, strength limitations, or budgetary constraints). 6. The applicant's ERB, dated 7 December 2015, shows he was assigned a PULHES code of "111111" and a Medical Readiness Classification (MRC) of "1." 7. Orders issued by HRC on 17 November 2016 directed the applicant's reassignment (voluntary) from the USAR Control Group (Reinforcement) to a Troop Program Unit. 8. A DA Form 4836, dated 5 April 2017, shows the applicant extended his USAR enlistment for a period of one year establishing his new expiration term of service as 28 December 2018. 9. The applicant's Noncommissioned Officer Evaluation Report (NCOER) covering the period 11 November 2016 through 30 May 2017, his last NCOER on record, shows he was rated as highly qualified and that he demonstrated excellence in physical fitness by earning the U.S. Army Physical Fitness Badge during the April 2017 unit Army Physical Fitness Test. 10. A memorandum for record, dated 14 August 2017, Developmental Counseling Forms, and a DA Form 4651, show the applicant requested reassignment to the Individual Ready Reserve due to employment conflict. 11. Orders issued by HRC on 8 January 2019 directed the applicant's discharge from the USAR effective 8 January 2019. 12. There is no evidence in the applicant's available records indicating he was unable to perform his military duties due to a medical disability. There is also no evidence indicating he completed 90 days or more of continuous active duty service after his released from active duty on 4 December 2015. 13. The applicant provided a VA Rating Decision and Summary of Benefits showing the evaluation of his posttraumatic stress disorder (PTSD) with alcohol use disorder, moderate, which was previously rated at 70 percent disabling, was increased to 100 percent effective June 18, 2020. 14. 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. 15. Title 38, U.S. 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. 16. Title 38, Code of Federal Regulations, Part IV is the VA Schedule for Rating Disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 17. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. a. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) and Health Artifacts Image Solutions (HAIMS) indicates the applicant was seen on 6 October 2015 for insomnia. He reported that he was projected to go to DC to pursue being a Senator. He has difficulty regulating his sleep and has nightmares. He was diagnosed with Insomnia and prescribed Trazadone. He had no further behavioral health appointments. b. A review of the VA's Joint Legacy Viewer indicates the applicant completed Compensation and Pension (C&P) examinations and received the following service connected disability ratings effective 5 December 2015: Flat foot 30%, limited flexion of knee 10% X 2, and tinnitus 10%. Effective 2 August 2016, he received a 70% rating for PTSD which was increased to 100% effective 18 June 2020. A review of his service record shows no indication of occupational impairment. His 2017 NCOER shows he was rated as Highly Qualified. His request to transfer into the Individual Ready Reserve indicates he worked for the Department of Homeland Security Intelligence and Analysis community and was an official nominee for political offices. This indicates the applicant had no impairment in his civilian employment. A primary VA treatment note from 8 May 2019 indicates he was still employed and maintained his security clearance. He was not in behavioral health treatment and declined a referral for treatment. On 26 Jun 2020, he reported recently completing a C&P reexamination for his PTSD. He stated he was recently in an altercation and had skull surgery. He was started on Propranolol for his anxiety symptoms. c. There is documentation to support a behavioral health diagnosis at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. It is acknowledged that the applicant has a service-connected disability for PTSD. This determination alone, however, does not automatically mean that military medical disability/retirement is warranted. It is important to understand that the VA operates under different rules, laws, and regulations when assigning disability percentages than the Department of Defense (DoD). In essence, the VA will compensate for all disabilities felt to be unsuiting. The DoD does not compensate for unsuiting conditions but rather for conditions that are determined to be unfitting. In addition, the role of compensating for post-separation progression or complications of service-connected conditions was granted by Congress to the Department of Veterans Affairs and not a function or role of the DoD. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board concurred with the finding of the ARBA Medical Advisor that the applicant had no conditions that did not meet retention standards at the time of his discharge and there was no basis for referring him to the Disability Evaluation System. Based on a preponderance of evidence, the Board determined his release from active duty for reduction in force, his subsequent transfer to the Individual Ready Reserve due to his employment, and final discharge from the USAR were not in error or unjust. 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. 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's Disability Evaluation System (DES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). 3. Army Regulation 635-40, dated 19 January 2017, superseded Army Directive 2012-18 (MOS Administrative Retention Review (MAR2), dated 23 August 2012. Chapter 3 (MAR2) implement and establishes policy for the MAR2. Soldiers must be of sufficient medical fitness to satisfactorily perform their primary MOS (PMOS) or area of concentration (AOC), as well as those functional activities listed on the DA Form 3349 (Physical Profile), which all Soldiers must perform regardless of PMOS or AOC. Of note, all functional activities listed on the DA Form 3349 must be marked "Yes" for the Soldier to be eligible for referral to a MAR2. The MAR2 is an administrative process for Soldiers who meet the medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness), but who nonetheless may not be able to satisfactorily perform the duties of their PMOS or AOC in a worldwide field or austere environment because of medical limitations. The MAR2 process is used to determine whether a Soldier will be retained in their PMOS or AOC or reclassified into another PMOS or AOC. Soldier who do not meet PMOS or AOC standards and who do not qualify for reclassification will be referred into the DES. For referral to a MAR2, the Soldier must have been issued a DA Form 3349 with a permanent (P) 3 or 4 in at least one of the profile serial factors for a medical condition(s) that meet the medical retention standards of Army Regulation 40-501. 4. Army Regulation 635-40 prescribes the Army DES 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. It implements the requirements of Title 10, U.S. Code, chapter 61; Department of Defense Instructions (DoDI) 1332.18 (DES); DoD Manual 1332.18 (DES Volumes 1 through 3) and Army Directive 2012-22 (Changes to IDES Procedures) as modified by DoDI 1332.18. a. The objectives are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits to eligible Soldiers whose military service is terminated because of a service-connected disability; provide prompt disability evaluation processing ensuring the rights and interests of the Government and Soldier are protected; and, establish the MAR2 as an Army pre-DES evaluation process for Soldiers who require a P3 or P4 profile for a medical condition that meets the medical retention standards of Army Regulation 40-501. b. Public Law 110-181 defines the term, physical DES, as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments and is composed of Medical Evaluation Boards (MEB), Physical Evaluation Boards (PEB), counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. c. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile approved in accordance with the provisions of Army Regulation 40–501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears not to meet medical retention standards in accordance with AR 40–501. Within (but not later than) 1 year of diagnosis, the Soldier must be assigned a P3/P4 profile to refer the Soldier to the DES. (2) The Soldier is referred to the DES as the outcome of MAR2 evaluation. d. An MEB is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per Army Regulation 40-501. This board may determine a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. This board must not provide conclusions or recommendations regarding fitness determinations. e. The PEB determines fitness for purposes of Soldiers’ retention, separation or retirement for disability under Title 10, U.S. Code, chapter 61, or separation for disability without entitlement to disability benefits under other than Title 10, U.S. Code, chapter 61. The PEB also makes certain administrative determinations that may benefit implications under other provisions of law. f. Unless reserved for higher authority, the U.S. Army Physical Disability Agency approves disability cases for the Secretary of the Army and issues disposition instructions for Soldiers separated or retired for physical disability. 5. DA Pamphlet 40-502 (Medical Readiness Procedures) describes the processes and procedures for assessing, documenting, reporting, and administering medical readiness. a. Paragraph 1-6 (MRC) states MRC 1 pertains to fully medically ready Soldiers who have a current status for a completed Periodic Health Assessment, dental readiness classification (DRC) 1 or DRC 2 assessment, immunization requirements, medical readiness and laboratory studies, individual medical equipment, and are without any deployment-limiting medical conditions or medications. b. 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 the functions describes a high level of medical fitness, deployable. 6. 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. It further states a DD Form 214 will be prepared for Reserve Components Soldiers completing 90 days or more of continuous active duty service. 7. Army Regulation 15-185 (ABCMR), 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) AR20210007226 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1