IN THE CASE OF: BOARD DATE: 14 April 2022 DOCKET NUMBER: AR20210010306 APPLICANT REQUESTS: to have her narrative reason for separation changed to show she was discharged due to service-connected disabilities. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in lieu of a DD Form 149 (Application for Military Record) * Department of Veterans Affairs (VA) letter, dated 23 January 2019 * VA Rating Decision, dated 31 January 2019 * VA Letter, dated 1 February 2019 FACTS: 1. The applicant states, in effect, the narrative reason for her separation should be changed based on the fact that the VA considers her to be 90 percent medically disabled as a result of multiple injuries she incurred in the line of duty (LOD) while serving on active duty. She needs this change in order to qualify for medical benefits. 2. The applicant's service records include/show: a. An enlistment contract which shows she enlisted in the Iowa Army National Guard (ARNG) for a period of 8 years on 8 October 2010. b. She completed initial entry training and was awarded military occupational specialty (MOS) 68W (Health Care Specialist). She subsequently completed training for reclassification to MOS 92Y (Unit Supply Specialist). c. She was ordered to active duty for training (ADT) the purpose of completing the Warrior Leader Course during the period of 30 October to 21 November 2013. On her first day of duty she felt a sharp pain in her right shoulder while lifting her duffle bag. On 31 October 2013, she was administered an Army Physical Fitness Test (APFT) and stated she was in a great deal of pain after the push-up event. She sought medical treatment on 6 November 2013. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows she was evaluated for osteoarthritis in her right shoulder that may result in a permanent partial disability. This form indicates the injury was sustained while serving on ADT, did not require a formal LOD investigation, and was considered to have been incurred in LOD. d. The applicant was ordered to annual training (AT) from 12 to 26 July 2014. She sustained injuries to her right shoulder and right knee while riding in the back of a Light Medium Tactical Vehicle (LMTV) on 19 July 2014. When the vehicle came to a sudden stop, she braced herself from the jolt and felt an immediate pain in her right shoulder. She also threw her right leg out against the tailgate of the LMTV to brace herself. When the weight of the equipment and other Soldiers pushed against her, she noticed pain in her right leg. She sought medical treatment on 19 July 2014. (1) A DA Form 2173 (Statement of Medical Examination and Duty Status) shows she was evaluated for rotator cuff syndrome-not otherwise specified in her right shoulder that may result in a permanent partial disability. This form indicates the injury was sustained while she was performing inactive duty for training, required a formal LOD investigation, and was considered to have been incurred in LOD. A DD Form 261 (Report of Investigation LOD and Misconduct Status), dated 21 January 2015, shows an investigation determined the injury was incurred in LOD and the determination was approved on 1 May 2015. (2) A DA Form 2173 shows she was evaluated for a torn meniscus in her right knee that may result in a permanent partial disability. This form indicates the injury was sustained while she was performing inactive duty for training, required a formal LOD investigation, and was considered to have been incurred in LOD. A DD Form 261 (Report of Investigation LOD and Misconduct Status), dated 21 January 2015, shows an investigation determined the injury was incurred in LOD. National Guard Bureau (NGB) memorandum, subject: LOD Determination [Applicant], dated 23 June 2015, shows this injury was determined to be not in LOD – not due to own misconduct for right knee advanced arthritic disease with meniscal degeneration. It was noted the applicant had a prior history of anterior cruciate ligament reconstruction as a teenager. There was no evidence that the injury occurred during the period of active duty service and the knee clearly had existed prior to service (EPTS) arthritic and degenerative disease without evidence of service aggravation. The applicant was afforded an opportunity to appeal this LOD determination, but her record is void of such an action. e. A DA Form 5501 (Body Fat Content Worksheet), dated 18 November 2016, shows the applicant exceeded the height and weight standards prescribed in Army Regulation 600-9 (The Army Body Composition Program). A DA Form 4856 (Developmental Counseling Form) shows she was entered into the Army Body Composition Program on the same date and advised a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) would be initiated as a result of failing to meet these standards. She was further advised that she must demonstrate progress each month in order to be a satisfactory participant in the program and was provided the goals she need to achieve. Failure was defined as an individual who did not make satisfactory progress for two consecutive months. After a period of diet and exercise for six months, Soldiers who had not made satisfactory progress would undergo a medical evaluation. If no underlying medical condition existed, the commander would initiate separation action, bar to reenlistment, or involuntary transfer to the Individual Ready Reserve. f. On 8 December 2016, a bar to reenlistment, immediate reenlistment or extension was imposed on the applicant as a result of failing to meet height and weight standards on 30 March and 18 November 2016. g. Additional DA Forms 4856 and DA Forms 5501, rendered between 8 January and 17 September 2017, show the applicant failed to make progress in the Army Body Composition Program. h. On 17 October 2017, the applicant’s company commander counseled her regarding her future in the ARNG. i. A DA Form 2173, dated 18 October 2017, shows she was evaluated for superior glenoid labrum lesion of the left shoulder and a complete rotator cuff tear/rupture in her left shoulder that may result in a permanent partial disability. It was noted the applicant had previous injuries to her right knee and right shoulder. Due to the nature of her job, she over-compensated with her left shoulder. Pain increased to a point that caused her to seek medical treatment in September 2017. This form indicates the injury was sustained while she was serving on active duty, did not require a formal LOD investigation, and was considered to have been incurred in LOD. j. On 31 January 2018, the applicant’s company commander notified her that he was initiating action to separate her from the ARNG under the provisions of Army Regulation 135-178 (ARNG and Reserve – Enlisted Administrative Separations), Chapter 15, Paragraph 15-2 (2b) for unsatisfactory performance based upon her failure to meet Army Body Composition Standards. The applicant acknowledged receipt of this notification on the same date. She elected to waive her rights to consult with legal counsel, to have a hearing before an administrative separation board, and to submit statements in her own behalf. She requested to be transferred to the United States Army Reserve Control Group (Reinforcement) until the effective date of discharge, 31 March 2018. k. A DD Form 261, initiated on 25 October 2017, shows a LOD investigation was conducted regarding complete replacement of the applicant’s right knee caused by grade 4 osteoarthritis. She claimed she was injured as a result of lifting and moving equipment during a two-week period in February 2017. The Investigating Officer and State Surgeon recommended a finding of not in LOD – not due to own misconduct, as the arthritis existed prior to starting an Active Guard Reserve (AGR) tour and the natural progression of the condition led to the joint replacement. However, the approval authority noted she had a previous LOD approved for a knee injury in 2014. She was also on long-term full-time AGR orders at the time of the increase of symptoms and due to the amount of use and type of work she was performing, the knee deteriorated to the point where there was no other option than a total knee replacement. On 17 March 2018, it was determined this injury was in LOD for right total knee replacement due to end stage arthritis. l. Orders discharged the applicant from the ARNG and as a reserve of the Army with an honorable character of service, effective 31 March 2018. The authority for this action was shown as National Guard Regulation 600-200 (Enlisted Personnel Management), Paragraph 6-35f and Army Regulation 135-178, Paragraph 9-1. The applicant’s NGB Form 22 (National Guard Report of Separation and Record of Service) shows she was discharged accordingly. At the time of her separation, she held the rank/grade of sergeant/E-5 and was credited with completion of 7 years, 5 months, and 23 days of her 8-year contractual obligation. 3. The applicant provides: a. A letter from the VA Muskogee Regional Office, Muskogee, Oklahoma, dated 23 January 2019, wherein she was informed she was entitled to receive 100 percent of the benefits payable under the Post-9/11 GI Bill program for which she had applied. b. A VA Rating Decision, dated 31 January 2019, wherein she was informed, in part: (1) Entitlement to an earlier effective date for service connection of scar, left shoulder was granted because a clear and unmistakable error was made; therefore, a 0 percent evaluation was assigned, effective 31 October 2017. (2) Service connection for right knee anterior cruciate ligament tear and medial meniscus tear with reconstruction and repair/resulting development of earlier than expected osteoarthritis was granted with an evaluation of 100 percent, effective 31 October 2017. An evaluation of 30 percent was assigned from 1 July 2018. (3) Entitlement to special monthly compensation based on housebound criteria being met was granted from 31 October 2017 to 30 June 2018. (4) Service connection for right rotator cuff tear and tendonitis, bicipital tendon tear, subacromial/subdeltoid bursitis and acromioclavicular joint separation (claimed as right shoulder chronic) was denied. (5) Service connection for painful scar, right knee as secondary to the service- connected disability of right knee anterior cruciate ligament tear and medial meniscus tear with reconstruction and repair/resulting development of earlier than expected osteoarthritis is granted with an evaluation of 10 percent effective 31 October 2017. (6) Service connection for scars, right knee as secondary to the service- connected disability of right knee anterior cruciate ligament tear and medial meniscus tear with reconstruction and repair/resulting development of earlier than expected osteoarthritis was granted with an evaluation of 0 percent effective 31 October 2017. (7) Service connection for scar, right shoulder as secondary to rotator cuff tear and tendonitis, bicipital tendon tear, subacromial/subdeltoid bursitis and acromioclavicular joint separation was denied. c. A letter from the VA, dated 1 February 2019, wherein she was provided a detailed list of the benefits she was entitled to and receiving at the time. 4. On 17 December 2021, an advisory opinion was requested regarding the applicant’s case. On 20 December 2021, a Legal Advisor representing Headquarters, United States Army Physical Disability Agency, Joint Base San Antonio, Fort Sam Houston, Texas, rendered a response. The applicant’s request was found to be legally insufficient as she does not have an approved Disability Evaluation System (DES) case. They acknowledged the applicant’s VA disability ratings and noted the 100 percent rating for her right knee was later reduced to 30 percent. Although her LOD does mention a previous knee and right shoulder injury, it is not clear if it was duty related as the LOD actually pertains to her left shoulder. Additionally, it is unknown if the applicant should have been referred to the DES. Without additional information, it would be speculative, even with the temporary 100 percent rating for her right knee, to know if any of her conditions would have warranted a permanent level 3 or 4 profile and referral to the DES. A copy of this advisory opinion was provided to the applicant for her review and possible rebuttal on 22 December 2021. To date, the applicant has not provided a response. 5. 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 (Joint Legacy Viewer (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. On 24 August 2015, the applicant was placed on a non-duty limiting permanent physical profile for “Right knee pain”. No other conditions were listed on the profile. The applicant was marked as capable of performing all the functional activities required of all Soldiers, including live in an austere environment. The profile simply allowed the applicant to perform an alternate aerobic event in lieu of the 2-mile run event for her Army Physical Fitness Test. No further permanent profiles were issued. b. Submitted with the application is a Report of Investigation Line of Duty and Misconduct (DD Form 261) approved on 21 January 2015 for permanent service aggravation of a pre-exiting rotator cuff tear in her right shoulder. She received an affirmative line of duty determination for a left shoulder condition on 23 October 2017. c. There is a 23 June 2015 memorandum from the National Guard Bureau showing her “Right Knee Advance Arthritic Disease with Meniscal Degeneration” had been determined “NOT IN LINE OF DUTY - NOT DUE TO OWN MISCONDUCT.” However, a Report of Investigation Line of Duty and Misconduct (DD Form 261) was approved on 25 October 2017 for “Right Total Knee Replacement due to End Stage Arthritis.” d. The applicant received a transferable flag on 18 November 2016 for failing the Army Body Composition Program (height and weight standards). The applicant was subsequently barred from reenlistment. She failed to meet height and weight standards upon repeat measurement in January, February, March, May, June, August, and September of 2017. e. On 31 January 2018, her company commander informed her of his recommendation that she be discharged for unsatisfactory performance: “The reason for my proposed action is your failure to meet Army Body Composition Standards.” The applicant elected to waive all rights that same day. f. While the applicant’s numerous orthopedic conditions likely made weight loss more challenging, this cannot mitigate the failure to meet height and weight standards. Paragraph 2-3d(4) of AR 600-9, The Army Weight Control Program, states: “The use of certain medications to treat an underlying medical disorder or the inability to perform all aerobic events may contribute to weight gain but are not considered sufficient justification for noncompliance with this regulation.” g. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 (Standards of Medical Fitness), prior to her discharge. Thus, there was no cause for referral to the DES. 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 her discharge. h. Review of her records in JLV shows she has been awarded multiple VA service connected disability ratings. 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 VA and executed under a different set of laws. i. Given the current information, it is the opinion of the ARBA Medical Advisor that a referral to the DES is not warranted. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the evidence does not show there was a basis for referring the applicant to the DES to determine if she should be discharged with severance pay or retired due to service- incurred or aggravated disabling conditions. Based on a preponderance of evidence, the Board determined her honorable discharge due to unsatisfactory performance based on non-compliance with the Army Body Composition Program was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx 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. Army Regulation 600-9 establishes weight control in all the Services. It states Commanders and supervisors are responsible to ensure all members of their command maintain proper weight, body composition and personal appearance. Those members exceeding standards will be medically evaluated and provided weight reduction counseling. a. If an individual's condition is diagnosed by medical authorities from an underlying or associated disease process, health care personnel will prescribe treatment, hospitalize the individual (Active Component only), and determine whether the individuals condition is medically disqualifying for continued service. b. If it is determined there is no underlying health condition for exceeding the weight standards; these facts will be documented and the member will be entered in a weight control program. Suspension of favorable personnel actions will be initiated. (1) Maximum allowable weight will be determined and a safe attainable weight loss goal will be established by health care personnel. The weight loss goal will be designed to enable the member to lose excess body fat and progress to a point, preferably below, but at least, to the maximum allowable weight. Weigh-ins will occur monthly to determine progress. (2) After a period of dieting and/or exercise for 6 months, personnel who have not made satisfactory progress toward their maximum allowable weight and still exceed the weight standard will be re-evaluated by health care personnel, of no underlying disease is associated the individual will be subject to separation. (3) As an exception to the aforementioned 6 months, if a member who has no weight loss after any two consecutive monthly weigh-ins may be referred by the commander or supervisor to a medical re-evaluation. If health care is not able to determine a medical reason and if the individual is not compliant and still exceeds the standards the commander or supervisor will inform the member progress is unsatisfactory and he or she is subject to separation. 2. Army Regulation 135-178, Chapter 9, provides a Soldier may be discharged when it is determined under the guidance set forth in chapter 2, section I, of this regulation, the Soldier is unqualified for further military service by reason of unsatisfactory performance. Commanders will take action to discharge a Soldier for unsatisfactory performance when it is clearly established that: a. In the commander's judgment: (1) A Soldier will not develop sufficiently to participate satisfactorily in further training or become a satisfactory Soldier. (2) The seriousness of the circumstances forming the basis for initiation of discharge proceedings is such that the Soldier's retention would have an adverse impact on military discipline, good order, and morale. b. There is a likelihood that the Soldier will be a disruptive influence in present or future duty assignments. c. There is a likelihood that the circumstances forming the basis for initiation of separation proceedings will continue or recur. d. The ability of the Soldier to perform duties effectively in the future, including potential for advancement or leader-ship, is unlikely. e. The Soldier meets retention medical standards of Army Regulation 40–501 (Standards of Medical Fitness). 3. Army Regulation 635-40, in effect at the time, governed the evaluation for physical fitness of Soldiers would might be unfit to perform their military duties due to a disability. It states the mere presence of an impairment did not, of itself, justify a finding of unfitness due to physical disability. In each case, it was necessary to compare the nature and degree of the physical disability with the duty requirements of the Soldier, based on his or her office, grade, rank, or rating; and a Soldier was presumed to be in sound physical and mental condition upon entering active duty. 4. Army Regulation 40-400, chapter 7 stated MEBs were convened to document a Soldier's medical status and duty limitations, insofar as his/her duty was affected by the Soldier's medical status. Referral to an MEB only occurred when the Soldier presented problematical or controversial aspects, and for cases where there was a regulatory requirement for MEB action. a. Situations requiring an MEB included: * Soldiers for whom PEB referral was contemplated for other than Temporary Disability Retired List periodic examinations * Soldiers with medical conditions or physical defects that were usually progressive in nature and for whom medical authority did not hold an expectation of a reasonable recovery; and * Soldiers whose medical fitness for return to duty was questionable, problematic, or controversial b. MEBs referred Soldiers to a PEB when they failed medical retention standards, as described in AR 40-501. 5. Army Regulation 40-501, in effect at the time, prescribed policies and procedures for identifying medical conditions that required referral to an MEB. Soldiers were referred to an MEB when their medical condition(s) did not meet the medical fitness standards for retention and separation, including retirement. PEBs made fitness determinations based upon guidance in Army Regulation 635-40. In each case, it was necessary to compare the nature and degree of the physical disability with the requirements of the Soldier's duties, as required by his/her office, rank, grade or rating. a. Physicians were responsible for providing a thorough and prompt evaluation of a Soldier when his/her medical condition made it questionable as to whether he/she could perform his/her duties. b. Unit commanders were charged with reflecting in a Soldier's evaluation report any physical defects which impacted that Soldier's duty performance, and commanders were also to refer the Soldier to the servicing medical treatment facility when they believed the Soldier was unable to perform the duties of his/her office, grade, rank, or rating. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court- martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010306 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1