IN THE CASE OF: BOARD DATE: 14 December 2022 DOCKET NUMBER: AR20220005142 APPLICANT REQUESTS: reconsideration of his previous request for physical disability retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * VA Statement in Support of Claim * Physical Profile * January 2012 VA Rating Decision * VA Approval of Adaptive Equipment * List of Service Connection * Application for VA Adaptive Equipment * Previous Denial Memorandum FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20200006738, on 10 September 2021. 2. The applicant states he wants a reconsideration of his previous case. He has sent new evidence. He was issued a physical profile at the time. 3. Review of the applicant’s service records shows: a. The applicant was born on. He turned 60 in. b. He enlisted in the Army National Guard ARNG) on 30 April 1978. He served through multiple extensions. He held military occupational specialty 62J (General Construction Equipment Operator). c. He was ordered to and entered active duty in support of Operations Desert Shield/Storm on 6 December 1990 and served in Southwest Asia from 10 January 1991 to 30 May 1991. He was honorably released from active duty on 22 June 1991. His DD Form 214 (Certificate of Release or Discharge) shows he completed 6 months and 17 days of active service this period. d. An Annual Medical Certificate shows the applicant underwent an over 40-physical at Hanscom Air Force Base on 1 June 1996 and had a permanent profile; however, the form does not list the specifics pertaining to the profile. The form further shows the applicant required further evaluation by a supervisor. The supervisor found the applicant fully fit. e. On 14 May 1997, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). f. On 10 August 1997, the applicant underwent a periodic medical examination and was issued a temporary physical profile. g. On 26 April 1998, he was discharged from the ARNG and transferred to the Retired Reserve. His NGB Form 22 (Report of Separation and Record of Service) shows he completed 19 years, 11 months, and 27 days of ARNG service with 11 months and 2 days of prior Reserve Component service. h. on 9 September 2016, the U.S. Army Human Resources Command published Orders placing the applicant on the retired list in his retired grade of sergeant/E-5 effective his 60th birthday. 4. On 10 September 2021, the Board considered his request for medical separation. Prior to adjudicating his case, the Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. The medical advisor stated that there are three situations in which the presumption of fitness may be overcome but none of the situations appear to have been applicable to the applicant’s chronic musculoskeletal conditions, the conditions which if shown to have been duty related would have made him eligible for referral to the Disability Evaluation System (DES)ES. Hence, the applicant would have been found fit by presumption and not be eligible for disability compensation. As he has done, he proceeded with his non-regular retirement for 20 or more years of service. It appears the applicant voluntarily requested and subsequently received retirement for length of Service. He was therefore fit by presumption at the time of his voluntary retirement. It is the opinion of the ARBA Medical Advisor that referral of his case to the DES is unwarranted. a. 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 advising official. b. Based upon a preponderance of the evidence, the Board concurred with the medical advisory opinion finding 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 of a medical separation is not warranted. 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 seeking a reconsideration of their prior denial , of his request to be referred to the Disability Evaluation System (DES). b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant received his 20-year letter on 14 May 1997 and was transferred from the Army National Guard to the retired reserve on 26 August 1998. He was placed on the retired list on 26 November 2016 and authorized retired pay under 10 U.S. Code § 12731 at that time. c. This request was previously denied in full on 10 September 2021 (AR20200006738). Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory opinion for that case. This review will concentrate on the new evidence submitted by the applicant. d. The only new document submitted with this application is a partially completed permanent profile for chronic degenerative disc disease. Only 2 boxes are marked on the entire form, and there is no second signature or signature of an approval authority. This lack of information prevents the form from providing probative information. e. As noted above, the applicant was transferred to the Retired Reserve in August 1998. Paragraphs 8-16.1 and 8-16.2 of NGR 600-200 Enlisted Personnel Management (1 March 1997) outlines the eligibility criteria and process for this voluntary transfer to the Retired Reserve and Retirement: “8-16.1. Eligibility a. ARNGUS enlisted soldiers who are eligible for transfer to the Retired Reserve or placement on the Retired List may apply for transfer or retirement at any time without regard to ETS unless under an involuntary call or order to active Federal service. Cite this paragraph as authority in orders. b. Retirement is voluntary. Soldiers who are released for any reason will not be transferred or placed in either category unless they apply in writing.” 8-16.2. Application a. Soldiers eligible for nonregular retired pay at age 60 per AR 135-180, may request transfer to the Retired Reserve (prior to age 60) or placement on the Retired List (at age 60) on DA Form 4187 to the State AG (MPMO) up to 18 months before the selected retirement date without regard to the currently scheduled ETS.” f. Paragraph 3-2b of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990): “(1) 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. (2) When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.” g. Without evidence to the contrary, it appears the applicant voluntarily requested and subsequently received retirement for length of Service. He was therefore fit by presumption at the time of his voluntary retirement. h. It is the opinion of the ARBA Medical Advisor that referral of his case to the DES is remains unwarranted. 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 finding that referral of the applicant’s case to the DES remains unwarranted. The Board recognized; the new evidence provided by the applicant as a partially completed permanent profile for chronic degenerative disc disease. Only 2 boxes are marked on the entire form, and there is no second signature or signature of an approval authority. The Board determined the additional documentation did not change the issues within his case. Furthermore, the Board found the applicant voluntarily requested and subsequently received retirement for length of Service. He was therefore fit by presumption at the time of his voluntary retirement. Based on a preponderance of evidence, the Board determined there is insufficient evidence to amend the previous Boards’ decision. Therefore, relief was denied. 2. The Board determined DES compensates an individual only for service incurred 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. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20200006738, on 10 September 2021. 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. 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. Paragraph 3-2 and 3-4 of AR 635-40, 1 September 1990: 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. b. When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit.” c. 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. 2. Department of Defense Instruction 1332.38 Subject: Physical Disability Evaluation (14 November 1996), states in Paragraph E3.P3.5.1 of states: “The Disability Evaluation System compensates disabilities when they cause or contribute to career termination.” 3. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40. 4. Title 38, U.S. 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. 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. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005142 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1