IN THE CASE OF: BOARD DATE: 15 June 2022 DOCKET NUMBER: AR20210017273 APPLICANT REQUESTS: in effect, * referral to the disability evaluation systems (DES) * medical retirement APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant and/or her counsel state she should have received a medical evaluation board (MEB). She was discharged with severe medical disabilities and the command did not properly process the MEB. The discharge was unfair at the time and remains unfair now. The applicant requests placement on the Temporary Disability Retired List (TDRL) and permanent medical retirement. 2. On 21 March 2022, the Army Board for Correction of Military Records (ABCMR) notified the applicant’s listed counsel that in order for the ABCMR to consider the application, the applicant must provide a copy of medical documentation and other supporting documents that support the claim. The case was placed on a 30-day hold and the applicant nor counsel have responded to date. 3. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 30 April 2013. b. The service record includes the applicant’s medical evaluations for the purposes of enlistment which indicated she was generally in good health with the physician documenting she had some scars. The applicant was marked qualified for service. * DD Form 2807-1 (Report of Medical History) dated 19 March 2013 * DD Form 2807-2 (Medical Prescreen of Medical History Report) dated 19 February 2013 * DD Form 2808 (Report of Medical Examination) dated 19 March 2013 c. The Enlisted Record Brief shows she served in Korea from 16 December 2013 through 21 November 2014 (11 months). It also shows her last physical exam date as 12 May 2020, and her PULHES as 111111. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. d. Orders 196-0225, dated 15 July 2021, discharged the applicant from active duty with an effective date of 9 July 2021. e. She was honorably discharged on 9 July 2021. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 8 years, 2 months, and 10 days of active service. She was assigned separation code KBK and the narrative reason for separation listed as “Completion of Required Active Service.” 4. The applicant's service record is void of documentation that shows she was treated for an injury or an illness that warranted her entry into the DES. Additionally, there is no indication she underwent a MEB or a physical evaluation board (PEB). 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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). See stated: (1) “Applicant should have received a Medical Evaluation Board (MEB). Applicant was discharged with severe medical disabilities and the command did not properly process the MEB. Applicant requests TDRL and permanent military retirement. (2) The applicant's discharge was unfair at the time and remains so now. The applicant should have been discharged under MEB. The discharge was procedurally defective.” b. The applicant is correct. c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows the applicant entered the regular Army on 30 April 2013 and was honorably discharged at the completion of his required active service on 9 July 2021 under provisions provided in Chapter 4 of AR 635-200, Active Duty Enlisted Administrative Separations (19 December 2016). It shows no time served in an imminent danger pay area. d. AHLTA records show the applicant was seen multiple times per week for depression, with a total of 122 behavioral health encounters from 15 September 2020 through her discharge on 9 July 2021. Notably, the applicant attempted suicide by overdose and was hospitalized on 8 July 2021, and so was a hospitalized inpatient, undergoing treatment for major depression, on the day of her discharge. She remained hospitalized until 15 July 2021. e. AHLTA shows the applicant was seen in the emergency department on 15 September 2020 and subsequently hospitalized for from 15 – 23 September 2020 for suicidal ideation. f. From her 4 January 2021 encounter: “SM {Service member} stated she feels her assault from Ft. Campbell is her index trauma because she is still here and around people who were involved in her life at that time and she found out a few months ago that he got kicked out of the Army for assaulting someone else. SM feels it is her fault because she didn’t report it. SM also believes the incident was her fault because she should have “known better” than to trust her new supervisor and she feels she should not have trusted him enough to go to his house for a party with her platoon.” g. From her 28 May 2021 encounter: “Since last visit patient as hospitalized at CHH for suicidal ideations with a plan from 5 May 2021 to 19 May 2021 for suicidal ideations with a plan and was unable to plan for safety with this provider. She was discharged on Zoloft 150mg daily, Seroquel 200mg nightly and Hydroxyzine 50mg as needed. Currently reports being overwhelmed – she is waiting for her ETS extension to get approved, currently she does not have access to post.” h. As noted above, the applicant was hospitalized again from 9-15 July 2021. i. It is clear she was not deployable and failed medical retention standards due to her depression from a military sexual assault. Paragraph 3-33b of AR 40-501, Standards of Medical Fitness (27 June 2019), which states depressive disorder are a cause for referral to the DES for: (1) Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization. (2) Persistence or recurrence of symptoms that interfere with duty performance and necessitate limitation of duty or duty in a protected environment. j. Review of her records in JLV shows she was awarded a 100% VA service connected disability rating the day after her discharge from the Army. k. It is the strong opinion of the ARBA Medical Advisor that a referral of her case to the DES is certainly warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered through counsel 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 advisory, the Board concurred with the advising official finding the applicant has a condition that clearly warranted referral to DES for consideration of separation through medical channels. Evidence in the records shows the applicant was not deployable and failed medical retention standards due to her depression from a military sexual assault. Based upon the preponderance of the evidence, the Board agreed the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with all relief dependent upon a final medical determination. Therefore, the Board granted partial relief. 2. Referral to the IDES occurs when a Soldier has one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring her records to The Office of the Surgeon General for review to determine if she should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue her the appropriate separation retroactive to her original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to show medical retirement. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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) AR20210017273 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1