IN THE CASE OF: Sikes, Andrew David BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20210015730 APPLICANT REQUESTS: a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * two Evans Memorial Letters * two Articles on Traumatic Brain Injury (TBI) * excerpt from Department of Veterans Affairs (VA) Decision (pages 2-5 of 6) 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 his “character of discharge should state medically retired.” He believes it is an injustice due to his experience with 25 direct improvised explosive device (IED) hits while deployed. He indicated seeking medical attention for the direct IED explosions was strongly discourages. He suffered from debilitating headaches and was subsequently diagnosed with a brain concussion in 2011. He was diagnosed with TBI in 2018 and his TBI should have been documented in Iraq, not dismissed by his superiors. Due to the intensity of the pain, his choice to complete 20 years of service was limited. 3. The applicant provides: a. A DD Form 214 for active service period from 6 December 2004 through 9 June 2006. b. Two letters from Evans Memorial Hospital, available for review by the Board: * 24 September 2010 – CT head with and without contrast; no intracranial abnormalities and high grade chronic left maxillary sinusitis * 10 May 2018 – MRI brain without contrast; 3 small areas of increased T2 signal in the white matter, the largest 6 mm, these are likely on the basis of small vessel disease c. Two articles on TBI: * American Journal of Epidemiology – Traumatic Brain Injury and Attempted Suicide Among Veterans of the Wars in Iraq and Afghanistan (3 May 2017) * neuro.psychiatryonline.org – Traumatic Brain Injury and Posttraumatic Stress Disorder (PTSD): Conceptual, Diagnostic, and Therapeutic Considerations in the Context of Co-Occurrence (Spring 2018) d. An excerpt from a VA decision (pages 2-5 of 6) outlined the reasons for the decision to increase the rating of PTSD with TBI at 30% to 100% effective 2 April 2020. 4. A review of the applicant’s service record shows: a. He enlisted in the Georgia Army National Guard (GAARNG) on 21 January 1989. b. He entered active duty on 6 July 1989. He was released from active duty training (ADT) on 17 November 1989 with an uncharacterized characterization of service. His DD Form 214 shows he completed 4 months and 12 days of active service. He was assigned separation code LBK and the narrative reason for separation listed as “Expiration Term of Service.” c. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows on 12 March 1992 the applicant fell and sprained his left ankle while running through the woods during a field training exercise. A formal line of duty investigation was not required and the injury as considered to have been incurred in the line of duty. d. Orders 013-036, dated 28 January 1997, discharged the applicant from the Army National Guard (ARNG) with an effective date of 1 February 1997. e. He was honorably discharged from the ARNG on 1 February 1997. An Automated Separation Document in lieu of an NGB Form 22 (National Guard Bureau - Report of Separation and Record of Service) shows he completed 8 years and 11 days of net service for the period. The applicant was transferred to the U.S. Army Reserve (USAR) Control Group for the remainder of his service obligation. f. Orders D-06-745436, dated 17 June 1997, honorably discharged the applicant from the USAR with an effective date of 17 June 1997. g. The service record is void of the DD Form 4 (Enlistment/Reenlistment Document) showing the applicant’s reentry into the GAARNG; however, a DD Form 4 is included for his reenlistment in the GAARNG at Talil, Iraq on 15 February 2006. h. Orders 337-692, dated 2 December 2004, ordered the applicant to active duty, in support of Operation Iraqi Freedom (OIF), for a period not to exceed 665 days with a report date of 6 December 2004. i. The Personnel Qualification Record, dated 16 February 2005, indicated the applicant had no profile limitations. j. The applicant’s DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) for the below listed periods include the following: * December 2002 through November 2003 – scored 181 on the Army Physical Fitness Test (APFT); rated fully capable and senior rated 2/2 * December 2003 through November 2004 – failed APFT run; rated fully capable and senior rated 2/2 * December 2004 through November 2005 – passed APFT December 2004; rated fully capable and senior rated 1/1 * December 2005 through November 2006 – APFT not administered in support of OIF; rated among the best and senior rated 1/1 k. A DA Form 638 (Recommendation for Award) shows the applicant received a Meritorious Service Medal (MSM) for the period of 17 May 2005 through 20 September 2005. Achievement 1 noted the applicant established the company standard operating procedure for the M1114 turret, developing a system that quite possibly averted a serious casualty on 21 August as a vehicle was struck by an IED. l. He was honorably released from active duty on 9 June 2006. His DD Form 214 shows he completed 1 year, 6 months, and 4 days of active service with service in Kuwait/Iraq from 9 May 2005 through 8 May 2006. He was assigned separation code LBK and the narrative reason for separation listed as “Completion of Required Active Service.” m. Orders 192-020, dated 10 July 2008, discharged the applicant from the ARNG with an effective date of 1 April 2007 and assigned him to the USAR Control Group. n. He was honorably discharged from the GAARNG on 1 April 2007. His NGB Form 22 shows he completed 9 years, 2 months, and 16 days of net service for the period. Block 23 (Authority and Reason) shows the applicant was discharged due to dependency or hardship (includes parenthood and sole parents) affecting his immediate family. o. Orders D-02-905052, dated 19 February 2019, honorably discharged the applicant from the USAR with an effective date of 19 February 2019. 5. The applicant's service record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 6. By regulation (AR 40-501), medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects are causes for rejection or medical unfitness for these specialized duties. If the profile is permanent the profiling officer must assess if the Soldier meets retention standards. Those Soldiers on active duty who do not meet retention standards must be referred to a medical evaluation board. 7. By regulation (AR 635-40), the Army disability system sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. The regulation 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. 8. 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. 9. Title 38, United States 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. 10. Title 38, Code of Federal Regulations, 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/her 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. 11. 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/or 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, in essence, a referral to the Disability Evaluation System (DES). He states: “I believe this to be an injustice due to experiencing 25 direct IED hits while deployed. Seeking medical attention from these direct IED explosions where strongly discouraged. After suffering from debilitating headaches, I was diagnosed with a Brain Concussion in 2011. Ultimately, I would be diagnosed with TBI in 2018. My TBI should have been documented during my tour in Iraq, not dismissed by my superiors. Due to the intensity of the pain, my choices were severely limited to complete 20 service years.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His Report of Separation and Record of Service (NGB Form 22) for the period of Service under consideration shows he entered the Army National Guard on 16 January 1998 and was honorably discharged on 1 April 2007 from the Georgia Army National Guard (GAARNG) under provisions provided in paragraph 8- 35c(1) of NGR 600-200, Enlisted Personnel Management (1 March 1997): Dependency or hardship (includes parenthood and sole parents) affecting the soldier's immediate family. c. A DD 214 shows he served on active duty in support of Operation Iraqi Freedom from 6 December 2004 thru 9 June 2006 with Service in Iraq from 9 May 2005 thru 8 May 2006. d. No probative medical documentation was submitted with the application. Review of his records in AHLTA show he was seen twice while in theater for “Back Strain”, on 19 and 24 April 2006. From the 19 April 2006 encounter: “Patient complaining of back pain for 1 month. He states that he was moving boxes and developed sudden pain that caused him to fall. He didn't seek help at that time. Pain seems to be a little better but he still is having problems. States the pain is 6/10 constant. Will occasionally get worse with activity but is actually worse with sitting. No lower extremity weakness. No numbness or tingling. No loss of bowel or bladder dysfunction.” e. The examination revealed some tenderness to palpation over the right lumbar paraspinous muscles with some muscle spasm for which conservative treatment was initiated. f. Review of the applicant’s records in MEDCHART show he was never placed on a permanent profile which would have been cause for a referral to the DES. g. Neither his separation packet nor documents addressing his separation were submitted with the application nor uploaded into iPERMS. h. On the applicant’s final NCO Evaluation Report (DA Form 2166-8) with a thru date of 30 November 2006, his rater top-blocked him as “Among the Best” writing: “o diligently works to improve the survivability of his convoy escort team in Iraq o always strives to be the best NCO in his team o provides unparalleled technical knowledge to improve maintenance and should be promoted when eligible o promote ahead of peers” i. His senior rater top-blocked him for both overall performance and overall potential. j. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his voluntary separation. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from reenlisting or being able to reasonably perform the duties of her office, grade, rank, or rating prior to his voluntary separation. k. Review of his records in JLV shows he has been awarded a VA service- connected disability rating for PTSD effective 20 March 2012. However, the DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. l. Given no evidence of error or injustice, it is the opinion of the Agency Medical Advisor that a referral of his case to the DES is unwarranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s narrative reason for separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :JNM :MRB :RBC 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 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 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. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. 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. 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. 4. 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 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. 5. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 6. Title 38 U.S. Code, section 1110 (General - 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 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. Title 38 U.S. Code, 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. 8. 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. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 9. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015730 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1