IN THE CASE OF: BOARD DATE: 19 October 2022 DOCKET NUMBER: AR20220001961 APPLICANT REQUESTS: in effect, a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: •two DD Forms 149 (Application for Correction of Military Record) •DD Form 214 (Certificate of Release or Discharge from Active Duty) effective 9July 2009 •DD Form 214 effective 13 August 2010 •thirteen DA Forms 3349 (Physical Profile) •DA Form 2173 (Statement of Medical Examination and Duty Status), 4 June2018 •three DA Forms 3349 •Orders 257-801, 15 September 2018 •NGB Form 22 (National Guard Report of Separation and Record of Service)effective 1 September 2018 •Health Readiness Record (HRR) Memorandum, 6 November 2019 •Medical Records (325 pages) FACTS: 1.The applicant did not file within the three-year time frame 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 he was discharged from the National Guard due to beingmedically unfit and should have received a medical retirement after serving 18 years.He injured his head while on active duty while serving overseas and does not believe itwas considered during his medical board, he should have received a line of dutydetermination. He also has a history of depression and post-traumatic stress disorder(PTSD) related symptoms from active duty deployments while serving in the NationalGuard. He was deployed to Kosovo in December 2009 and slipped on ice while walkinginto the hanger. He landed on the back of his head and saw stars. He was taken to theTroop Medical Clinic (TMC) where they took a CT scan which revealed an object hadbeen “growing” in his head. His request was delayed as a result of having two back to back surgeries on his head. 3.The applicant provides: a.The below listed documents to be referenced in the service record: •DD Form 214 effective 9 July 2009 •DD Form 214 effective 13 August 2010 •Orders 257-801 dated 15 September 2018 •NGB Form 22 effective 1 September 2018 b.Thirteen DA Forms 3349 placed the applicant on limitations for the below periodsand reasons: •9 February 2011 – depression and distant vision loss •27 January 2012 (x2) – decreased distant visual acuity •12 April 2012 – lower back pain •6 November 2012 – depression and distant vision loss •11 September 2014 – right knee pain •9 November 2014 – knee pain •2 January 2017 – depressive disorder •6 February 2017 – bipolar disorder •21 February 2017 – bipolar disorder •26 April 2017 (x3) – bipolar disorder c.A DA Form 2173, dated 4 June 2018, shows the applicant injured his right kneeduring the unit Army Physical Fitness Test (APFT) on 2 June 2018. He was taken to the Urgent Care facility where the injury was identified as derangement of unspecified medial meniscus due to an old tear (M23.203). The injury was considered in line of duty. d.Three additional DA Forms 3349 were subsequently issued for the below: •18 June 2018 – bipolar disorder •28 June 2018 – bipolar disorder •6 July 2018 – bipolar disorder e.A memorandum, dated 6 November 2019, indicated a review of the applicant’shealth readiness record (HRR) service treatment record revealed his entrance physical examination was unavailable. f.His medical records (325 pages) for treatment received from approximately 1December 2003 through 2 June 2018. 4.A review of the applicant’s service record shows: a.He enlisted in the Regular Army on 26 January 2001. b.The service record includes the applicant’s medical evaluations for the purposesof enlistment with the applicant indicating he was generally in good health. The clinical evaluation was marked normal with Block 77 (Examinee) marked qualified for service. •DD Form 2807-2 (Medical Prescreen of Medical History Report) dated 24January 2001 •Standard Form (SF) 88 (Report of Medical Examination) dated 7 November1995 c.A DA Form 2173, dated 3 March 2001, shows the applicant sprained his wrist on21 February 2000 when he fell off of an obstacle course and sustained a left scaphoid fracture. The injury was considered in line of duty. d.Orders 314-0004, dated 10 November 2005, released the applicant from activeduty, not by reason of physical disability, with an effective date of 25 January 2006. e.He was honorably released from active duty on 25 January 2006. His DD Form 214 shows he completed 5 years of active service. He was assigned separation code MBK and the narrative reason for separation listed as “Completion of Required Active Service.” f.He enlisted in the Army National Guard (ARNG) on 26 January 2006.g.He entered active duty on 2 January 2009. He was honorably released fromactive duty training on 9 July 2009. His DD Form 214 shows he completed 6 months and 8 days of active service. He was assigned separation code MBK and the narrative reason for separation listed as “Completion of Required Active Service.” h.Orders 204-049, dated 23 July 2009, ordered the applicant to active duty insupport of Operation Enduring Freedom for a period not to exceed 400 days and a report date of 7 August 2009. i.Two amendments to Orders 204-049 were published: •Orders 253-103 dated 10 September 2009 – amended the fund cite •Orders 218-193 dated 6 August 2010 – amended the end date to read 13August 2010 j.His DA Form 2-1 (Personnel Qualification Record) shows he served in Kosovofrom 26 October 2009 through 17 July 2010. k.Orders 201-1179, dated 20 July 2010, released the applicant from active duty,not by reason of physical disability, with an effective date of 13 August 2010. l.He was honorably released from active duty on 13 August 2010. His DD Form 214shows he completed 1 year and 7 days of active service. He was assigned separation code MBK and the narrative reason for separation listed as “Completion of Required Active Service.” m.The applicant was given four DA Forms 2166-9-1 (NCO Evaluation Reports) andmarked “highly qualified” on by his senior rater. •27 January 2015 thru 26 January 2016 (Aircraft Electrician) – passed APFT15 March 2015 •27 January 2016 thru 15 August 2016 (Aircraft Electrician) – passed APFT 20February 2016 •16 August 2016 thru 12 March 2017 (Aircraft Electrician – passed APFT 22January 2017 •13 March 2017 thru 12 March 2018 (Avionic Mechanic) – profile 26 April 2017 n. The service record is void of the facts and circumstances surrounding the applicant’s separation. o. Orders 257-801, dated 14 September 2018, discharged the applicant from the ARNG with an effective date of 1 September 2018. p. He was honorably discharged from the ARNG on 1 September 2018. His NGB Form 22 shows he completed 12 years, 7 months, and 6 days of net service for the period. Block 23 (Authority and Reason) shows the applicant was discharged due to being medically unfit for retention. 5.On 22 July 2022, the U.S. Army Physical Disability Agency legal advisor rendered anadvisory opinion in the processing of this case. She opined: a.Despite the applicant’s inclusion of approximately 350 pages of supportingmedical documentation, the available record does not clearly outline the course of his military separation. According to the applicant, he was discharged for an unspecified non-duty related condition. He also notes he has a history of depression and PTSD. In addition, he stated he slipped on ice and hit the back of his head. b.It is not clear from the available record what non-duty related condition caused theapplicant to be separated. It appears the only condition for which he has an “in line of duty” (LOD) determination is a knee injury/knee pain from 2018. Presumptively, this is not the condition he was separated for. In any case, LOD determinations are governed by Army Regulation (AR) 600-8-4 and do not fall under the umbrella of the PDA responsibilities. 6.On 26 July 2022, the advisory opinion was forward to the applicant foracknowledgment and/or response. The applicant has not provided a response to date. 7.The applicant's service record is void of documentation that shows he was treatedfor an injury or an illness that warranted his entry into the Physical Disability EvaluationSystem (PDES). Additionally, there is no indication he underwent a medical evaluationboard (MEB) or a physical evaluation board (PEB). 8.By regulation (AR 40-501), medical evaluation of certain enlisted militaryoccupational specialties and officer duty assignments in terms of medical conditions andphysical defects are causes for rejection or medical unfitness for these specializedduties. If the profile is permanent the profiling officer must assess if the Soldier meetsretention standards. Those Soldiers on active duty who do not meet retention standardsmust be referred to a medical evaluation board. 9.By regulation (AR 635-40), the Army disability system sets forth policies,responsibilities, and procedures that apply in determining whether a Soldier is unfitbecause of physical disability to reasonably perform the duties of his or her office,grade, rank, or rating. The regulation states disability compensation is not anentitlement acquired by reason of service-incurred illness or injury; rather, it is providedto Soldiers whose service is interrupted and who can no longer continue to reasonablyperform because of a physical disability incurred or aggravated in military service. 10.The Army rates only conditions determined to be physically unfitting at the time ofdischarge, which disqualify the Soldier from further military service. The Army disabilityrating is to compensate the individual for the loss of a military career. The VA does nothave authority or responsibility for determining physical fitness for military service. TheVA may compensate the individual for loss of civilian employability. 11.Title 38, United States Code, Sections 1110 and 1131, permit the VA to awardcompensation for disabilities which were incurred in or aggravated by active militaryservice. However, an award of a VA rating does not establish an error or injustice on thepart of the Army. 12.Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for ratingdisabilities. The VA awards disability ratings to Veterans for service-connectedconditions, including those conditions detected after discharge. As a result, the VA,operating under different policies, may award a disability rating where the Army did notfind the member to be unfit to perform his/her duties. Unlike the Army, the VA canevaluate a Veteran throughout his or her lifetime, adjusting the percentage of disabilitybased upon that agency's examinations and findings. 13.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, the Army Aeromedical Resource Office (AERO), 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 DisabilityEvaluation System (DES) and a medical retirement. He states: “I was discharged due to being medically unfit for retention and went through a nd-loi {nonduty; loi ??}. However, I believe it should have been a duty related loi {??} based on my previous medical history from the national guard. I have attached my medical documents. I hurt my head while on active duty serving overseas and they did not consider any of that during my med-board. I served 18 years and should have received a medical retirement.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s Report of Separation and Record of Service (NGB Form 22) for the period of Service under consideration shows the former Guardsman enlisted in the Army National Guard on 26 January 2006 and was discharged from the Army National Guard (ARNG) on 1 September 2018 under the provisions of paragraph 6-35l(8) of NGR 600-200, Enlisted Personnel Management (31 July 2009): Medically unfit for retention per AR 40-501. It shows the applicant had 18 years, 2 months, and 8 days of total service for retired pay. c.Paragraph 6-35l(8) of NGR 600-200: “Commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per AR 40-501. If the Soldier refuses to report as directed, see paragraph 6-36u below. Commanders who do not recommend retention will request the Soldier’s discharge. When medical condition was incurred in line of duty, the procedures of AR 600-8-4 will apply. Discharge will not be ordered while the case is pending final disposition. This paragraph also includes those Soldiers who refuse or ineligible to reclassify into a new MOS. RE 3.” d.The applicant was placed on a duty limiting permanent physical profile for bipolardisorder on 18 June 2018. The provider commented “Separation via ND-PEB {nonduty related physical evaluation board} is recommended IAW AR 40-501 {Standards of Medical Fitness}, 3-32.” e.Paragraph 3-32 of AR 40-501 (14 June 2017) lists the causes for referral to aMEB for Soldiers with mood disorders: “a. Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or b.Persistence or recurrence of symptoms necessitating limitations of duty or dutyin protected environment; or c.Persistence or recurrence of symptoms resulting in interference with effectivemilitary performance.” f.The most recent encounters in AHLTA are from his redeployment in 2010. Fromhis demobilization mental health screening on 19 July 2010 : (1)“Psychiatric therapy from 2nd grade to 9thgrade on Ritalin and Wellbutrin forADHD, depression. Counseling in June 09 for depression at mobilization. SI{suicidal ideation} in June 2001. (2)Psychological symptoms: No anxiety, no depression, no sleep disturbances,no previous suicide attempt, and not being upset by problems at home orwork. No interpersonal relationship problems.” g.The provider documented a normal examination and the applicant was releasedwithout limitations. h.The applicant received a negative screening for traumatic brain injury (TBI) on 20 July 2010: (1)“SM {service Member} reports Dec 10, 2010, ‘On Dec10, 2009 during a sleetstorm I was heading to the Western Entrance of clam shell #2 when I slippedand landed directly on the back of my head.' ‘Went to the ER.' At time ofinjury experienced being dazed, confused, and seeing stars. Right after injuryexperienced HA and dizziness. (2)Subjective: SM now reports no signs/symptoms of post concussive syndrome.SM does not wish to have f/u screening here at Camp Atterbury.” i.On his November 2013 periodic health assessment, he wrote he had a history ofdepression and dealt with it thru therapy and family support. The provider wrote “Diagnosed with depression as a teen, not medially treated, denies depression today. Has seen a therapist in past, prefers non rx {treatment without prescription medication}.” j.ePEB has no record of either a duty related or non-duty related PEB for thisapplicant. k.Neither the applicant’s separation packet nor additional documentation addressinghis administrative separation were found in the supporting documentation or iPERMS. There is no evidence the applicant’s bipolar disorder was due to or was permanently aggravated by his military service. l.There is no evidence the applicant had a duty related medical condition whichwould have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any duty related medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. m.Review of his records in JLV shows he has been awarded multiple VA service-connected disabilities, including one for traumatic brain disease. This condition was rated at 0% on 7 June 2018 and the rating was increased to 10% effective 27 February 2020. He has no VA service-connected mental health conditions. n.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. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. o. Because the applicant had 18 years of total service for retired pay, he is eligible to retire under 10 U.S. Code § 12731b, Special rule for members with physical disabilities not incurred in line of duty (15-year notice of eligibility). Passed in 1999, this statute authorizes the Secretary concerned to treat a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit due to physical disability not incurred in the line of duty as having met the service requirements for years of service computed under 10 U.S. Code § 12732. The Secretary can then provide the member with a notification that the member has completed at least 15, and less than 20 of service. This “15-year Notice of Eligibility” authorizes a non-regular retirement. p. It is the strong opinion of the Agency Medical Advisor the applicant should receive his 15-year notice of eligibility from the ARNG. A referral of his case to the DES for a duty related medical condition is not 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 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 advising official finding that a referral of his case to the Disability Evaluation System (DES) is not warranted. There is no evidence the applicant had a duty related medical condition which would have failed the medical retention standards prior to his discharge. However, the Board determined the applicant had 18 years of total service for retired pay, he is eligible to retire under 10 U.S. Code § 12731b, Special rule for members with physical disabilities not incurred in line of duty (15-year notice of eligibility). Based on public law, the Board granted partial relief to provide the applicant with a notification that the applicant has completed at least 15, and less than 20 of service. This “15-year Notice of Eligibility” authorizes a non-regular retirement. 2.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. TheDES has neither the role nor the authority to compensate service members foranticipated future severity or potential complications of conditions which were incurredor permanently aggravated during their military service. These roles and authorities aregranted by Congress to the Department of Veterans Affairs and executed under adifferent 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 the evidence presented is sufficient to warrant arecommendation for partial relief. As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by HumanResources Command issue a notification that the applicant has completed at least 15,and less than 20 of service.2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief. As a result, the Board recommends denial of so much ofthe application that pertains to referral to disability evaluation system. 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.Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departmentswith authority to retire or discharge a member if they find the member unfit to performmilitary duties because of physical disability. The U.S. Army Physical Disability Agencyis responsible for administering the Army physical disability evaluation system andexecutes Secretary of the Army decision-making authority as directed by Congress inchapter 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 medicalretention 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: theMEB 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 afinding 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, orSeparation) establishes the Army Disability Evaluation System and sets forth policies,responsibilities, and procedures that apply in determining whether a Soldier is unfitbecause 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 unfitnesswill be considered in arriving at the rated degree of incapacity warranting retirement orseparation 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 thefollowing 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 wasentitled 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 intentionalmisconduct 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 fitnessstandards for enlistment, induction, appointment (including officer procurementprograms), retention, and separation (including retirement). The Department ofVeterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and theVA as part of the process of adjudicating disability claims. It is a guide for evaluating theseverity of disabilities resulting from all types of diseases and injuries encountered as aresult of or incident to military service. This degree of severity is expressed as apercentage rating which determines the amount of monthly compensation. 5.Title 10, U.S. Code, section 1201, provides for the physical disability retirement of amember 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 amember who has less than 20 years of service and a disability rating of less than 30percent. 6.Title 38 U.S. Code, section 1110 (General - Basic Entitlement), states for disabilityresulting from personal injury suffered or disease contracted in line of duty, or foraggravation of a preexisting injury suffered or disease contracted in line of duty, in theactive 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 - BasicEntitlement) states for disability resulting from personal injury suffered or diseasecontracted in line of duty, or for aggravation of a preexisting injury suffered or diseasecontracted in line of duty, in the active military, naval, or air service, during other than aperiod of war, the United States will pay to any veteran thus disabled and who wasdischarged or released under conditions other than dishonorable from the period ofservice in which said injury or disease was incurred, or preexisting injury or disease wasaggravated, compensation as provided in this subchapter, but no compensation shall bepaid if the disability is a result of the veteran's own willful misconduct or abuse of alcoholor drugs. 8.On 25 August 2017, the Office of the Undersecretary of Defense for Personnel andReadiness issued clarifying guidance for the Secretary of Defense Directive to DRBsand BCM/NRs when considering requests by Veterans for modification of theirdischarges due in whole or in part to: mental health conditions, including PTSD,traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberalconsideration to Veterans petitioning for discharge relief when the application for relief isbased, in whole or in part, on those conditions or experiences. The guidance furtherdescribes evidence sources and criteria and requires boards to consider the conditionsor experiences presented in evidence as potential mitigation for misconduct that led tothe discharge. 9.Section 1556 of Title 10, United States Code, requires the Secretary of the Army toensure that an applicant seeking corrective action by the Army Review Boards Agency(ARBA) be provided with a copy of any correspondence and communications (includingsummaries of verbal communications) to or from the Agency with anyone outside theAgency that directly pertains to or has material effect on the applicant's case, except asauthorized by statute. ARBA medical advisory opinions and reviews are authored byARBA civilian and military medical and behavioral health professionals and aretherefore internal agency work product. Accordingly, ARBA does not routinely providecopies of ARBA Medical Office recommendations, opinions (including advisoryopinions), and reviews to Army Board for Correction of Military Records applicants(and/or their counsel) prior to adjudication. //NOTHING FOLLOWS//