IN THE CASE OF: BOARD DATE: 19 August 2022 DOCKET NUMBER: AR20220000921 APPLICANT REQUESTS: a change in the narrative reason of his discharge to disability separation retirement for injuries suffered before and during his deployment to Afghanistan APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: •ACTS Online Application in lieu of DD Form 149 (Application for Correction ofMilitary Record), 27 November 2021 •Veterans Administration Benefits Summary Letter, 27 November 2021 FACTS: 1.The applicant did not file within the three-year period provided in Title 10, UnitedStates Code, section 1552(b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file. 2.The applicant states, in effect: a.He injured his left knee before his deployment to Afghanistan. He completedphysical therapy and was cleared to deploy. After he deployed, he injured the same knee. He also fell out of a Mine-Resistant Ambush Protected (MRAP) and injured his back. He was medically evacuated to Germany and a week later he was sent to Fort Hood, TX. b.An MRI was completed at Fort Hood, but he did not see the results of the medicalreport. He completed physical therapy again, but it did not help him. The rear detachment first sergeant (1SG) tried to have him transferred to the Warrior Transition Unit (WTU) to get medical care and a medical discharged. c.He was placed on a "dead-man profile," he was unable to do any physical trainingand he gained weight. Once the company 1SG returned from Afghanistan, he said that the applicant abandoned them, and he would make sure he got kicked out. The 1SG would not allow him to go to the WTU and pushed chapter paperwork for being overweight. d.Once he was discharged a doctor checked his back and found he had multipleinjuries to lower back requiring surgery. He had knee surgery and was granted 100% disability through the Veterans Administration. 3.On 3 March 2011, in connection with an enlistment in the Regular Army (RA), theapplicant underwent a medical examination and gave a medical history. a.His DA Form 2807 (Report of Medical History) notes, in part, he was previouslyhospitalized for knee surgery and reported no complications. b.His DA Form 2808 (Report of Medical Examination), the examining physiciannoted he was overweight as of his examination; and subsequently noted he was qualified for enlistment. 4.On 17 October 2011, he enlisted in the RA for a period of 3 years and 20 weeks atage 17. 5.He served in Afghanistan from 12 July 2013 to 2 November 2013. 6.The complete case files for the approved separation leading to his discharge are notcontained in the applicant's available service records. His service records contain amemorandum from the Commanding Officer, Headquarters, 1st Battalion, 8th CavalryRegiment, 2d Brigade Combat Team, 1st Cavalry Division, 24 June 2014, approving hisseparation from the Army under the provisions of Army Regulation 635-200 (Active DutyEnlisted Administrative Separations), chapter 18 (Failure to Meet Weight ControlStandards). The approval authority directed that he not be transferred to the USARControl Group (Inactive Reade Reserve). 7.On 16 July 2014, Headquarters, III Corps and Fort Hood, Fort Hood, issuedOrders 197-0123, reassigning him to the U.S. Army Transition point for transitionseparation with a date of discharge of 17 July 2014. 8.On 17 July 2014, he was honorably discharged after completing 2 years, 9 months,and 1 day of net active service. His DD Form 214 (Certificate of Discharge or Releasefrom Active Duty) contains the below entries: •Block 25 (Separation Authority) – Army Regulation 635-200, chapter 18 •Block 28 (Narrative Reason for Separation) – Weight Control Failure 9.The applicant provided a copy of a VA letter summarizing his benefits, 27 November2021, which shows his combined service-connected evaluation was 100%, he wasconsidered to be totally and permanently disability due solely to his service-connecteddisabilities effective 1 December 2020. 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 change in his separationauthority and, in essence, a referral to the Disability Evaluation System. He states: “Before deployment I had injured my left knee. I went through Physical Therapy and was cleared to deploy. While deployed I hurt the same knee. I also fell off a MRAP and hurt my back. I was med-flighted to Germany and then after a week I was sent back to Fort Hood. Once I started being seen by doctors, I had an MRI on my knee. They never gave me results of what was wrong with it. I did complete physical therapy again which did not help. Once I got out of the Army and moved back to my hometown, I saw a Doctor and he told me my knee required surgery which he did. While being seen for my back after getting back to Fort Hood they never did any scans, test, etc. on my back. The Rear Detachment First SGT tried having me transferred to Warrior Transition Unit to get medical care and Medically Discharged. I was placed on a dead-man’s profile and was unable to do any kind of PT {physical training}. Once the Company 1st SGT returned from Afghanistan, he said that I had abandoned them and he would make sure I got kicked out. Being on a dead-man’s profile and not being able to do any kind of exercise I gained weight. The 1st SGT would not allow me to go to warrior transition unit and pushed Chapter paperwork for being overweight. Once I was discharged, I actually had a DR. check my back and found out I had multiple injuries to my lower back that requires surgeries to fix. Between the knee injury and back injury and some other things I was granted 100% disability through the VA. I would just like for my status to go from Chapter 18 to a Medical Discharge.” b.The Record of Proceedings details the applicant’s military service and thecircumstances of the case. His DD 214 for the period of Service under consideration shows he entered the regular Army on 17 October 2011 and was honorably discharged on 17 July 2014 under provisions in chapter 18 of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009): Failure to Meet Weight Control Standards. c.Paragraphs 18-2a and 18-2b of AR 635-200: “(1) Soldiers who have been diagnosed by health care personnel as having amedical condition that precludes them from participating in the Army body fat reduction program will not be separated under this chapter. (2)If there is no underlying medical condition and a Soldier enrolled in the ArmyWeight Control Program fails to make satisfactory progress in accordance withAR 600–9, separation proceedings will be considered.” d.Paragraph 3-2d(1) of AR 600-9, The Army Weight Control Program (27 November2006): “The medical professional will conduct a thorough medical evaluation to rule out any underlying medical condition (for example, a metabolic disorder) that may be a cause for significant weight gain. If an underlying medical condition cannot be controlled with medication or other medical treatment, the medical professional will refer the Soldier to a medical evaluation board (MEB).” e.Paragraph 3-2d(4) of AR 600-9: “The use of certain medications to treat an underlying medical disorder or theinability to perform all aerobic events may contribute to weight gain but are not considered sufficient justification for noncompliance with this regulation.” f.Paragraph 3-2e of the same regulation: “If the underlying medical condition does not require referral to an MEB/PEB anda Soldier is classified as overweight, these facts will be documented and the Soldier will be entered into the AWCP {Army Weight Control Program} except as described in paragraph 3-2b.” g.Review of the applicant’s pre-entrance Report of Medical History shows he hadundergone surgery on one knee for an apparent patellar problem and a cholecystectomy in 2005. The provider noted the applicant had played football after the knee surgery and the cholecystectomy had been without complications. The Report on Medical Examination documented a normal examination and that the applicant was overweight by 13 pounds when he was initially evaluated on 22 March 2011. When he returned for reevaluation 11 October 2011, he was still overweight, but having lost 6 pounds he was cleared to enlist. h.No additional medical documents were submitted with the case file i.The applicant’s separation packet is not in the supporting documents nor was ituploaded into iPERMS. The only document addressing his administrative separation is the battalion commander’s 24 June 2014 approval of the applicant’s separation under chapter 18 of AR 635-200. j.Review of the applicant’s records in AHLTA show that while in Afghanistan, he wasdiagnosed with a displaced meniscus tear of the left knee on 31 October 2013 was medically evacuated through Landstuhl Regional Medical Center to Darnall Army Medical Center for definitive care. k.He was evaluated by orthopedics on 6 November 2013, and other than a smalleffusion, the exam was normal, including a full range of motion, a finding which is inconsistent with a displaced meniscus. The provider opined: “Patient will continue with rest, ice, compression and elevation. The patient's examination does not support a meniscal tear. The patient will follow up in the orthopedic clinic on an as-needed basis. I have given the patient a profile for the next 30 days. He will follow up with his primary care provider.” l.He was seen for left knee and low back pain on 18 December 2013 and wasreferred for an MRI of the left knee. The study was completed on 13 January 2014 and revealed a normal knee. In February 2014, the applicant was diagnosed with patellofemoral pain syndrome and treated conservatively, to include a temporary physical profile and a referral to physical therapy. m.The only other condition treated during this period was depression to which theapplicant responded well to behavioral heal care. Form his 25 February 2014 encounter: “The Patient is a 20-year-old male. Chief complaint: “mood is good... But trouble staying asleep” States he is happy with the effect of Zoloft 50 mg as well as melatonin. States the problem now is middle and late insomnia. The melatonin has helped normalized falling asleep and also paying attention to the sleep hygiene. However, he is currently assigned staff duty up to 7 times per month and his sleep cycle is difficult to regulate. He is engaged in physical therapy for the knee and states it is nearly constantly in pain, albeit tolerable.” n.The applicant continued with physical therapy. He had one more visit for low backpain prior to his final encounter, his pre-separation physical on 10 July 2014. Following this examination, the provider wrote: “SM {Service Member} returned early from deployment for knee pain. Has been cared for successfully by PT {physical therapy}. SM diagnosed with depression and anxiety and is currently on meds. ETS’ing next week. Will follow-up with primary care manager as needed. o.Paragraph 3-2d(4)(e) of AR 600-9 requires the examiner to “Determine whetheran individual’s condition is medically disqualifying for continued service. If the Soldier does not meet medical retention standards of AR 40-501, chapter 3, the Soldier will be referred to an MEB/physical evaluation board (PEB).” It is clear the applicant had no such condition. p.There is no evidence the applicant had an injury or any other condition failed themedical retention standards of chapter 3, AR 40-501, Standards of Medical Fitness prior to his discharge. Paragraph 3-2d(4)(e) of AR 600-9 requires the examiner to “Determine whether an individual’s condition is medically disqualifying for continued service. If the Soldier does not meet medical retention standards of AR 40-501, chapter 3, the Soldier will be referred to an MEB/physical evaluation board (PEB).” q.It is clear the applicant had no such condition. Furthermore, there is no evidencethat any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. r.Review of his records in JLV shows he 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 Department of Veterans Affairs and executed under a different set of laws. s.It is the opinion of the ARBA Medical Advisor that neither a change in hisseparation authority nor a referral of his case to the DES is warranted. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, and regulatory guidance. The Board considered the applicant's statement, the medical records, and the review and conclusions of the medical reviewing official. Based upon a preponderance of the evidence, the Board concurred with the medical reviewer’s finding of insufficient evidence the contested medical conditions failed to meet retention standards during his period of service. Therefore, the Board determined referral to DES for consideration and changing his reason for separation is not warranted. 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. Microsoft Office Signature Line... 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 forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice. This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3-year statute of limitations if the ABCMR determines itwould be in the interest of justice to do so. 2.Army Regulation 15-185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy acting through the ABCMR. The ABCMR begins its consideration of each casewith the presumption of administrative regularity. The applicant has the burden ofproving an error or injustice by a preponderance of the evidence. 3.Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effectat the time, set policies, standards, and procedures to ensure the readiness andcompetency of the force while providing for the orderly administrative separation ofSoldiers for a variety of reasons. a.Chapter 18 (Failure to Meet Weight Control Standards). This chapter providedguidance for Soldiers who failed to meet the body fat standards set forth in Army Regulation 600–9, were subject to involuntary separation per this chapter when such condition is the sole basis for separation. b.Separation proceedings may not be initiated under this chapter until the Soldierhas been given a reasonable opportunity to meet the body fat standards, as reflected in counseling or personnel records. Soldiers who have been diagnosed by health care personnel as having a medical condition that precludes them from participating in the Army body fat reduction program will not be separated under this chapter. If there is no underlying medical condition and a Soldier enrolled in the Army Weight Control Program fails to make satisfactory progress in accordance with AR 600–9, separation proceedings will be considered. Initiation of separation proceedings is required for Soldiers who fail to meet body fat standards during the 12–month period following removal from the program, provided no medical condition exists. c. Separation action under this chapter will not be initiated against a Soldier who meets the criteria for separation under other provisions of this regulation. For example, a Soldier beyond entry-level status who, wholly apart from failure to meet body fat standards, is an unsatisfactory performer, will be processed for separation under the provisions of chapter 13. d. The service of those separated per this chapter will be characterized as honorable unless an uncharacterized description of service is required for Soldiers in entry-level status. 4. 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, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. a. The objectives of the system are to: • maintain an effective and fit military organization with maximum use of available manpower • provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability • provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: • when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board • receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board • are command-referred for a fitness-for-duty medical examination • are referred by the Commander, Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees. d. 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. 5. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. 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 service. a. Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 4-10 provides that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in Army Regulation 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. e. Paragraph 4-12 provides that each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. 7. 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. 8. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 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//