IN THE CASE OF: BOARD DATE: 29 November 2021 DOCKET NUMBER: AR20210010777 APPLICANT REQUESTS: in effect, an honorable physical disability separation or retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Initial Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire * VA Shoulder and Arm Conditions Disability Benefits Questionnaire * IMT Sick Slip * Medical Record (8 Pages) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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 was ordered to active duty at Fort Sill for army basic training 15 July. He completed reception. He began basic training. He was injured on active duty in week 1 of basic training and thereafter released for "administrative purposes" by his physical therapist, and thereafter misrepresented that physical therapy was terminated for poor effort and also misrepresented that the injury occurred in reception when it did not. released him back to full duty without restriction while refusing to treat injuries, citing they were fabrications. also ordered stress management and that was not followed. It appears that made statements and decision from those statements that conflict with the history of his medical record prior to his intervention. He had to be released from active duty because of an unrelated legal reason and they needed to medically clear him so he could be released from active duty to make a court date and lied about the accident of where it occurred and got the released from active duty accomplished. misrepresented truth and that removed his ability to be considered for the Disability Evaluation Service (sic) because he medically cleared him for fabricated reasons when he was still unable to perform his duties due to injuries and there had been no sign of improvement. 3. The applicant enlisted in the United States Air Force. He entered initial active duty for training (IADT) on 29 November 2011 and was released on 1 July 2012. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with 7 months active net service and 11 months 9 days of prior inactive service. 4. The applicant submitted a DD Form 368 (Request for Conditional Release) on 3 March 2013 in order to enlist in the Oklahoma Army National Guard. The request was approved on 3 March 2013. 5. On 12 march 2013, a NGB Form 22-3 (Request for Waiver) shows the applicant was disqualified [for enlistment] due to dependency, because he was separated and had 2 minor children. The waiver was granted to qualify the applicant for enlistment in the Oklahoma Army National Guard Under the authority of Army Regulations 601-210, paragraph 2-10 b (5) (without a spouse and has custody of at least one dependent under the age of 18) on 13 March 2013. 6. On 15 March 2013, the applicant underwent a medical examination for the purpose of enlistment in the Army National Guard. His DD Form 2808 (Report of Medical Examination) did not show any significant defects. The applicant did not report any significant defects on the corresponding DD Form 2807-1 (Report of Medical History) and indicated he was in good health. 7. The applicant enlisted in the Army National Guard of the United States and the State of Oklahoma for a period of 6 years on 15 March 2013. 8. The applicant was ordered to IADT at Fort Sill, OK with a reporting date of 15 July 2013. A memorandum, dated 20 August 2013, shows the applicant was released from IADT as a non-graduate. It states he has missed the majority of mandatory graduation requirements due to medical reasons. He was cleared medically to continue training. However, family hardship issues at home have prevented him from completing training. A DD Form 220 (Active Duty Report) shows the applicant was released from active duty on 26 August 2013 and was listed a non-basic training graduate. 9. On 26 February 2014, a letter to the applicant advising him of his pending separation for failing to attend scheduled drills, and provide instruction on a hardship discharge. On 27 February 2014, the applicant received notification of separation proceedings under the provisions of Army Regulation 135-178, Chapter 6-2 for family hardship, specifically family hardship that prevents the completion of training. He was recommended an uncharacterized description of service. He was advised of his right to consult with counsel, obtain copies of documents used supporting separation, and to submit statements on his own behalf. He was advised he may waive his rights and withdraw such waiver prior to approval of his separation. 10. On 27 February 2014 he acknowledged receipt of the notification of separation proceedings. He elected to waive his right to consult with counsel and requested copies of the separation documents. He did not indicate his election to submit statements on his own behalf, however, notes he has included a written statement and supporting documents. The applicant’s statement explains he experienced legal difficulties concerning his wife and this was preventing him from completing training and attending drills. The applicant’s written statement is available for the Board’s review. 11. The applicant was honorably discharged from the Army National Guard and the Reserve of the Army on 28 June 2014 for hardship. 12. The applicant provided a copy of his VA Initial PTSD Disability Benefits Questionnaire, dated 19 March 2018, that shows his diagnosis of PTSD. He also provided a copy of his VA Shoulder and Arm Conditions Disability Benefits Questionnaire, dated 23 March 2018, shows his diagnosis of right should rotator cuff tendonitis and subacromial/subdeltoid bursitis. 13. The applicant provided a copy of a IMT Sick Slip which shows he had a medical condition of right should pain. The applicant annotated he was prescribed a narcotic for the pain; the form shows he was prescribed Motrin and tramadol. The physical limitations were valid through 6 August 2013. The copy is of poor quality and its effective date is not legible. 14. The applicant also provided 8 pages of medical records from BCT detailing his right shoulder treatment. 15. 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. 16. Title 38, USC, 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. 17. Title 38, CFR, 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 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. 18. 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) and a medical retirement. He states: “S.A. misrepresented truth and that removed my ability to be considered for the Disability Evaluation Service {sic} because he medically cleared me for fabricated reasons when I was still unable to perform my duties due to injuries and there had been no sign of improvement.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The Active Duty Report (DD Form 220) for the service under consideration shows the former Army National Guard Soldier entered active duty on 15 July 2013, and was released active duty and departed for his home station on 26 August 2013. It states “Soldier is a NON-BT {basic training} graduate.” c. The applicant’s Report of Separation and Record of Service (NGB Form 22) shows the applicant entered the Army National Guard on 15 March 2013 and was discharged from the Oklahoma Army National Guard on 28 June 2014 under authority provided in paragraph 6-35c(1) of NGR 600-200, Enlisted Personnel Management (31 July 2009): Dependency or hardship (includes parenthood and sole parents) affecting the Soldier’s immediate family. d. From a 9 August 2013 follow-up AHLTA encounter: “27-year-old AD male with a complaint of right shoulder pain for the past week after he was hit in the shoulder unloading bags. The patient is in the ANG {Army National Guard} and has a mandatory return date to start the Gold Program at the end of September. e. The examiner, physician assistant noted some pain with a decreased range on motion. He opined: “Patient is under the care of physical therapy. He has a return date that is not specified on his orders. He also has a custody court date that is pending. I advised the SM that this is not a medical issue but a command issue. I recommended that he speak with is chain of command to resolve these issues.” f. At his follow-up appointment on 13 August 2013, he was complaining of 7/10 pain and requested a refill of his tramadol prescription. His shoulder MRI obtained the following day revealed a small amount of fluid in the subacromial bursa. Fluid in the bursa if often a normal finding, or as noted by the radiologist, a sign of “possible minimal bursitis.” The study was otherwise normal and so did not reveal an underlying pathology for his marked 7/10 pain for which he had been receiving a narcotic. g. At his follow-up appointment with physical therapy on 19 August 2013, the applicant informed the provider the he was “in the middle of a divorce and would like to be discharged in time to make court dates.” The following day the therapist wrote “Is asking about the possibility of being discharged for anxiety.” h. He was seen that same day by the the physician assistant, who summarized the situation to that point in time” (1) “This patient is a poor historian. At initial evaluation the patient states he injured his right shoulder while at reception carrying his bags. After evaluation and treatment by physical therapy and myself, the patient now states that he has had this injury for multiple years. This patient was previously in the Air Force and a review of his previous medical records do not show any previous shoulder injury. When asked directly, the soldier states he does not want to train. (2) The patient has been released from physical therapy because of poor effort. I discussed the patient's MRI results with him which show mild bursitis. I also explained to him that there is no medical reason for me to recommend a separation and that if he does not want to training should be addressed through his chain of command. The patient verbalized understanding. I also contacted the soldier's 1SG and recommended that he see behavior health for stress management. The 1SG verbalized understanding and agreement. I do not need to see this patient back for follow-up on his right shoulder. He is to return to duty and is medically cleared for training and or administrative actions.” i. This was the final encounter in AHLTA. j. Also on 20 August 2013, the Reserve Component Liaison at Fort Sill requested the applicant be released from active duty (REFRAD): “Solider has not met all course requirement and in not a graduate. Solider missed the majority of mandatory graduation requirements due to medical reasons. Soldier is now cleared medically to continue training. However, family hardship issues at home have prevented him from completing training. In the Soldier’s best interest, it is recommended from Stated IADT {Inactive duty for training} manager the he be a REFRAD.” k. The applicant missed several drill weekends following his return to Oklahoma and was informed of the possibility of a hardship discharge: “At this point, your situation has to be resolved regarding your contractual obligation to the Guard. Since you have not attended drill in several months, a discharge for AWOL has been initiated. However, that is a time-consuming process; a much faster and, for you, a better type of resolution would be a hardship discharge.” l. Not only would this expedite his discharge, but this action would also result in an honorable discharge. m. The applicant appears to have agreed to a hardship discharge. He was informed of his commander’s initiation of a hardship discharge in a 27 February 2014 memorandum, and was honorably discharged on 28 June 2014. n. Review of his records in JLV shows he has been awarded multiple VA service connected disabilities. However, the DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions incurred during or were permanently aggravated by their military service; or for compensating conditions which did not contribute to career termination. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. o. It is the opinion of the Agency Medical Advisor that a referral of his case to the DES is not warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board found that relief was not was warranted. The applicant’s contentions, military record, and regulatory guidance were carefully considered. Based on the preponderance of the documentation available for review to include an advisory, the Board found the applicant had been properly informed of the option for a hardship discharge per regulatory guidance in effect at the time, agreed with the recommendation and as a result was discharged based on hardship. As the burden of proof is on the applicant, the Board found insufficient documentation to warrant relief. 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, USC, 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 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations) implements Department of Defense Instructions 1332.14. It establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard of the United States and the United States Army Reserve. Chapter 6 (Convenience of the Government) states a Soldier may be separated for the convenience of the Government on the basis of the reasons set forth in this chapter. Paragraph 6-2 (Dependency or hardship) states upon the request of a Soldier and approval of the separation authority, separation may be directed when it is considered that continued membership and service on AD, full-time National Guard duty (FTNGD), or ADT, would result in genuine dependency or undue hardship. Hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s Family, separation from the service would materially affect the care or support of the Soldier’s Family by materially alleviating undue hardship. 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 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. 5. Title 38, USC, Section 1110 (General - Basic Entitlement) sates 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. 6. Title 38, USC, 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. 7. 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. 8. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210010777 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1