IN THE CASE OF BOARD DATE: 13 July 2022 DOCKET NUMBER: AR20210016083 APPLICANT REQUESTS: * in effect, a medical retirement * a video/telephonic appearance before the Board 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) * NGB Form 22 (Report of Separation and Record of Service) * NGB Form 23B (Army National Guard (ARNG) Retirement Points History Statement) * Service Record Extract * Department of Veterans’ Services Office of the Director letter * DD Form 108 (Application for Retired Pay Benefits), 4 March 2018 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 respectfully requests that he be granted disability pay as of the date of his separation. During his time in the ARNG he was diagnosed and treated for Diabetes Mellitus, Type 2. He believes he was medically retired from service due to being found medically unfit for duty because of his diagnosis. He feels he should have been considered for service connected disability because he was involuntarily separated from the ARNG for medical reasons in 2003. 3. The applicant provides: a. The below listed documents to be referenced in the service record: * DD Form 214 effective 4 October 1989 * NGB Form 22 effective 3 January 2003 * NGB Form 23B dated 17 January 2003 * Service Record Extract * DD Form 108 dated 4 March 2018 b. A letter from the Arizona Department of Veterans’ Services Office of the Director to the Department of Veterans Affairs (VA), dated 3 June 2014, which states he is requesting the applicant’s claim for service connection be reopened and the rating decision from 2007 be reconsidered due to a clear and unmistakable error. The applicant was still serving in the ARNG when he was diagnosed and treated for Diabetes Mellitus, Type II. The applicant was medically retired form service due to being found medically unfit for duty because of his diagnosis. He believes he should have been considered for service connection because he was involuntarily separated in 2006. 4. A review of the applicant’s service record shows: a. He entered active duty on 1 June 1978. He was honorably discharged on 4 October 1989. His DD Form 214 shows he completed 11 years, 4 months, and 4 days of active service. He was assigned separation code JBK and the narrative reason for separation listed as “Expiration Term of Service (ETS).” b. The service record does not contain additional documents for the above referenced service period outside of the DD Form 214. c. He enlisted in the Arizona Army National Guard (AZARNG) on 27 January 1999. d. His DA Form 2-1 (Personnel Qualification Record) shows he previously served on active duty as a medium helicopter repairer and was serving in the AZARNG as AH- 64 repairer. e. A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment) shows on 10 March 2002, the applicant extended his enlistment for a period of 6 months with a new ETS of 26 July 2002. f. A Request for Extension memorandum, dated 11 April 2002, shows the applicant’s request for the extension listed through 26 July 2002, was approved. g. A DA Form 4836 shows the applicant extended his enlistment an additional six months through 26 January 2003. h. Orders 04-34, dated 14 January 2003, discharged the applicant from the AZARNG with an effective date of 3 January 2003. i. He was honorably discharged from the AZARNG on 3 January 2003. His NGB Form 22 shows he completed 3 years, 11 months, and 7 days of net service for the period. Block 23 (Authority and Reason) indicated the applicant was medically unfit for retention per Army Regulation (AR) 40-501. j. The NGB Form 23B, dated 17 January 2003, provides a summary of the points the applicant has earned towards retirement, a total of 4,355. k. A service record extract includes the following: * Net Service for the Period – 3 years, 11 months, and 7 days * Total Service for Pay – 15 years, 3 months, and 11 days * Reason for Discharge – Medical, Physical or Mental Condition Retention 5. On 25 May 2022, the National Guard Bureau, Special Actions Branch Chief rendered an advisory opinion in the processing of this case. He opined: a. A review of Medical Electronic Data Care History and Readiness Tracking (MEDCHART), the Soldier's Treatment Record (STR), and the Armed Forces Health Longitudinal Technology Application (AHL TA) was made by the state to provide input. No additional medical information could be found, other than documents provided to the Army Review Board Agency (ARBA) to support the applicant’s claim. b. Based on the evidence presented and collected, it is the opinion of this office that the applicant’s discharge from the AZARNG was correctly processed, using the rules and regulation according to NGR 600-200. There were no medical documents provided, or any that could be acquired such as P3 profiles, or an approved Line of Duty to demonstrate that his condition of Diabetes Mellitus type 2 is service connected, and previous health assessments that show that the condition existed prior to service. c. The condition of Diabetes is progressive and therefore it would not just appear. The applicant was previously a Regular Army Soldier who served for over 11 years, and was discharged due to expiration of service and not medical. This office could not a make a distinction between the applicant's claim of a service connection and a condition that could have possibly existed prior to service and therefore been aggravated by service which would have entitled him to a medical evaluation since no medical records exist. 6. On 26 May 2022, the advisory opinion was forward to the applicant’s listed representative’s office for acknowledgment and/or response. The representative provided the applicant’s Certificate of Death which indicates the applicant was found deceased on 1 February 2022. 7. 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. 8. 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). 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the ROP, and the applicant's records in the and the VA's Joint Legacy Viewer (JLV). There were no records in Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), or in the Health Artifacts Image Management Solutions (HAIMS), due to the age of the case. The applicant requested consideration for medical retirement due to Diabetes Mellitus Type 2. He contended that he was diagnosed and treated for Diabetes Mellitus Type 2 while serving in the National Guard. He indicated that he applied previously. a. There were no service treatment records that were available for this review. JLV search revealed that the earliest record found for the applicant in the current VA system, was dated in December 2004, almost 2 years after the applicant was already discharged from service. The search also revealed that the applicant was total combined service connected at 10% by the VA for the following: Tinnitus 10%; and Impaired Hearing 0%. b. Due to the lack of available medical evidence to support the applicant’s contention, the ARBA Medical Reviewer is unable to provide a meaningful opinion concerning whether or not the condition met retention standards of AR 40-501 chapter 3 BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advisory official who found the applicant was total combined service connected at 10% by the VA for tinnitus at 10% and impaired hearing with 0%, it would not appear that these injuries would rise to the level of causing the applicant to be considered medically unfit. Evidence of record shows the applicant did not seek medical treatment until December 2004, almost 2 years after the applicant was already discharged from service. The Board concluded there was insufficient evidence of an error or injustice which would warrant a change to his narrative reason for separation. Therefore, the Board denied relief. 2. 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. 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 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) 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. 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 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. 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. 7. 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. 8. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016083 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1