IN THE CASE OF: BOARD DATE: 14 December 2022 DOCKET NUMBER: AR20220005465 APPLICANT REQUESTS: •physical disability retirement in lieu of separation with severance pay •correction of his records to show he completed 20 years of qualifying service forretirement APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •applicant's family photo •memorandum from the applicant's former company commander, 22 May 2014 •DA Form 638 (Recommendation for Award) and Bronze Star Medal narrative andcertificate •DD Form 214 (Certificate of Release or Discharge from Active Duty) for theperiod ending 18 December 2014 •DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) •appeal to MEB findings •memorandum from the U.S. Army Physical Evaluation Board (PEB) to theDepartment of Veterans Affairs (VA), subject: Request for Rating for applicant •VA Rating Decision, dated 22 July 2014, and statement of rated disabilities •several military awards certificates •eight-party statements of support •Department of Defense (DoD) Civilian Evaluation Reports •DoD Civilian Leave and Earnings Statement •excerpt of DoD Instruction (DoDI) 6040.44 (DoD Physical Disability Board ofReview (PDBR)) •various transcripts of U.S. Federal Courts cases FACTS: 1.The applicant did not file within the 3-year time frame provided in Title 10, U.S.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 defers to counsel. 3.In a 22-page statement, counsel states, in part: a.The applicant was a stellar signal intelligence warrant officer who gave everythinghe had to the Army. He was repeatedly decorated, including receiving the Bronze Star Medal, and improved every unit he was in. His service as an intelligence officer ensured that thousands of service members and civilians came back home safe, and that hundreds of enemies of the United States did not. He also consistently went above and beyond, both in programs designed to liaison with local civilians, as well as in improving the practices of the units he was in. Yet, in the darkest period of his life, suffering from a severe back injury, post-traumatic stress disorder (PTSD), and a complete inability to sleep, the Army sought to discard him instead of helping him. Even worse, the same officers seeking to discard him also sought to wring every last drop of utility they could out of him before they forced him out. Though their attempts to separate him adversely failed, he accepted to continue within the Disability Evaluation System (DES) due to this betrayal of trust. Upon the wrongful advice of his counsel, he accepted a medical separation instead of continuing his appeal of his assigned rating, which would have resulted in a medical retirement. This wrongful counsel, which the applicant acted on out of trust of what seemed to be the only military personnel protecting his interests at the time, amounted to more than $900,000 in lost lifetime earnings. He accepted medical separation, ending a period of service that amounted to nearly 17 years, close to half of his life. b.The applicant begins contributing to the fight in the Great War on Terror; he isdeployed to Afghanistan for the first time; he severely injures his back and develops PTSD and severe sleep problems. Following his second deployment to Korea, he would be transferred to the National Security Agency (NSA) Washington, where he was in charge of the Mead Operations Center Counter-Improvised Explosive Device (IED) Analysis Cell and Analysis Directorate. Commanding a team of 210 personnel, he helped save the lives of thousands of service members and civilians, both through direct analysis and contributing to instructional materials on counter-IED operations. He would be awarded his second Defense Meritorious Service Medal and the prestigious Knowlton Award, which recognizes contributions to military intelligence, and earned an appointment as warrant officer. Yet, this tour took a price, as he worked extend hours reviewing extremely graphic videos, which caused him to begin having immense trouble sleeping. Chief Warrant Officer Four (CW4) W, one of his commanders while at the NSA Counter-IED, spoke at length about the intense pressure of the position, the 12-16 hour days worked by the personnel, and the toll constantly closely reviewing footage of American Soldiers being struck by IEDs took on the applicant and the rest of the team. CW4 W would also speak to the applicant's incredible dedication to his position, and how CW4 W would at times have to order him to receive medical attention or take pauses in his work. c. The applicant's first position as a warrant officer was with a military intelligencebrigade, where he worked as its Signals Intelligence Resource Manager. He would soon be deployed to Afghanistan, in November of 2011, where was the officer in charge of the reporting cell of the Afghanistan Regional Operations Cryptological Center. While he was there, Bagram Air Base was under constant indirect fire, including a strike which resulted in a very close call for him. He also badly injured his back when moving equipment. He began to suffer incredible pain and was no longer capable of moving his legs well. In addition, his sleep problems continued to worsen, requiring his commanders to grant him permission to alter his work/sleep cycles and to maintain a flexible schedule. They did this because he was such a valuable contributor to the unit. Despite the intense pain and the stress of his position, he proved himself more than worthy of their esteem. d. The physical and psychological cost of this deployment returned home with him, when he returned stateside on 24 December 2012, after more than a year in Afghanistan. He returned to NSA , where he served in a similar role as in Afghanistan, as a watch officer for theater support activities. There he led 400 joint service and contractor personnel, and his experience enabled his team to support over 90 force prevention events, which helped ensure that many American service members came back home safely. He was on the night shift, and continued to have difficulties sleeping. His back issues continued to worsen, and he had troubles even walking. For all his life he had been used to working through the pain and overcoming his physical issues. But this, unfortunately, was too much. He tried to remain in shape but his body could simply not match what his mind wished of it. His physical problems were worsened by his lack of sleep and PTSD. He requested a transfer to a new section in order to have a regular schedule and to change the type of work he was doing, in order to try and master those problems, but his boss told him that he was too valuable and needed to stay. This was the start of his downfall. e. Remaining in his position, and the toll it came with, resulted in him being extremely depressed. Not only did he face a hostile work environment, but he was constantly having to solve the complaints and problems brought to him by his troops and contractors. He remained positive at all times with them, but the negativity, personal difficulties, and constant exposition to combat operations continued to take a severe toll. He applied for a program that would move him back to NSA , but this would require passing a physical fitness test. Due to the severe physical problems caused by his back injury, he failed his walk test by a few seconds. He was negatively counseled and retested 90 days later, but his physical problems had only gotten worse. He failed a second time. f. At this point, his battalion commander wanted to separate him from the Army due to failing the physical fitness tests. He sought to explain to him his physical problems and the help he clearly needed. The first doctor he visited was skeptical, claiming that everyone had back complaints. It was only when he eventually saw the head doctor that someone finally took his problems seriously, not only was an MRI requested, but she found a variety of other problems he was suffering from. She put him in for both the pain management program and a medical board. g. Luckily, the battalion commander's attempt to separate him from the Army for failing the physical fitness tests failed. Each officer in his direct chain of command above the battalion level recommended his retention, as well as other officers he had previously worked for, including the general in charge of the NSA. In the meantime, he continued to excel at work, despite his problems. He was held in such high esteem that four service members requested that he administer the oaths of enlistment during their reenlistment ceremonies. This reminder of the esteem of others helped him greatly during what was otherwise a very dark time. As an example of the hypocrisy of the process he had been forced to undergo, his company commander, who had been very much against his retention in the Army, still asked him to train all the new warrant officers in the unit. h. In the meantime, the DES process continued. By this point, the applicant was so disillusioned by the Army that he decided to accept a potential discharge, instead of seeking to remain in the Army at all costs and receiving treatment for his injuries while serving. The MEB found that his only unfitting condition was thoracic spine degenerative changes. The applicant sought to appeal this, as the spine changes would only merit a low disability percentage and he was suffering from a wide array of other severe problems, including obstructive sleep apnea. At this point he felt alone and badly used by the Army, as well as heartbroken because he would not get to serve the full 20 years and have a proper retirement. His military assigned counsel, Lieutenant Colonel (LTC) , was the only person he felt he could truly trust. i. By May of 2014, the applicant was alone and in the midst of the darkest period of his life. He was in incredible physical pain, and the Army, which he had given nearly half his life to, had sought to discard him after all he had contributed. Even worse, it sought to wring every last drop of use it could out of him while in the midst of trying to discard him. As noted above, the only person he felt he could trust was his assigned military counsel. In mid-July of 2014, LTC called him to tell him that he was extremely unlikely to succeed on appeal and that it made more financial sense for him to accept a medical separation, rather than continue the appeals process to seek a medical retirement. This would prove to be disastrous advice, but the applicant, trusting his military counsel and in the grips of his physical and mental injuries, accepted it. j. The sheer scale of this disaster is evident. At the time, the applicant was a single man, which is what LTC grounded his advice on. The PEB had previously found his conditions unfitting on 6 June 2014, and had requested a disability evaluation from the VA to set the disability rating for the applicant. On 22 July 2014, a few days after he had accepted to end his appeal and accept separation, the VA would recommend to the PEB a rating of 80% disability (50% for sleep apnea, 30% of ischemic heart disease, 10% for thoracic spine degeneration, 10% for cervical strain, 10% for right knee degenerative joint disease, 10% for left knee degenerative joint disease, 10% for left hip strain, 10% for adjustment disorder with mixed features, 10% for tinnitus), more than sufficient for a disability retirement. Yet, by this point, the process was over, due to the applicant having accepted his counsel's advice. k. To give the sheer financial cost of LTC terrible advice. On separation the applicant received a severance package of 2.5 years of salary, in the amount of $156,892.00, calculated on his rank pay scale in 2014. In addition, he received VA payments at 80% disability of $1,778.43, as calculated on the VA scale as of 2014. By contrast, his retirement payments at 80% disability, pursuant to the calculation scale provided by Title 10 U.S. Code, section 1401, would have been calculated at $3,922.30 (75% of the 36-month average of his highest paying months-as established by his separation payment being set on a monthly scale of $5,229.73 per month). In addition, he was foreclosed from concurrent retirement and disability payments under the Combat Related Special Compensation and Concurrent Retirement and Disability Payments programs. The applicant was 35 years old on separation. Assuming he lived an average lifespan, he had 44 years to go. In terms of lifetime earnings, based on his status in 2014, he lost $975,140 in lifetime earnings due to his counsel's erroneous advice (($3,922.30-1,778.43*44*12)-$156,892). He would have been already better off by the end of 2020. What makes this even worse is that accepting separation instead of continuing to pursue a medical retirement also meant forgoing military insurance for him and his family, which he now pays $400 per month for, another $211,200 in lost benefits. In short, his counsel's calculations were off by nearly $1.2 million, just based on the numbers as they were at the time in 2014, and not even taking into account for the lost potential concurrent payments. l. The applicant meets the regulatory requirements for a medical retirement under Title 10 U.S. Code, section 1201, as his disabilities were rated at 80%, he was found unfit by a PEB, and he was active duty at the time. His decision to accept medical separation instead of medical retirement was an error and injustice founded on poor advice by assigned military counsel. The Board should correct his records by overturning this decision, granting him medical retirement at 80% disability, and awarding him any backpay due based on the difference between the medical retirement payments owed and his separation and VA payments. m.Pursuant to DoDI 6040.44, Enclosure. 3 ,4(a)(5) (2015) the ABCMR must givespecial consideration to the VA's rating of the applicant's disabilities at 80%, as it was issued within 12 months of his separation. When the PEB found him unfit, it requested a disability rating from the VA for him. The VA proposed a rating of 80%. The threshold for a medical retirement is at 30%. n.It is a basic principle of law that the DoD, and all of the agencies contained withinit, such as the Army, are bound by their regulations. DoDI 6040.44 Encl. 3 4(a)(5) states that the BCMRs (specifically instructing the PDBR, but also applying a universal principle for all boards assessing disability determinations, such as the ABCMR) are required to consider VA rating determinations, compare the VA rating with the PEB combined disability rating, and consider any variance within its deliberations, particularly if the VA rating was awarded within 12 months of the service member's separation. Though boards are not required to conform to the VA' s rating, it must explicitly address the rating and explain why its own rating diverges. Failure to do so is arbitrary decision making and requires setting aside the decision and remanding the issue to the board for it to address the issue. o.Here, the VA actually issued this rating 5 months prior to the applicant'sseparation from the Army. Of particular note is that the VA directly contradicted the MEB's refusal to rate his obstructive sleep apnea. This is particularly important because the MEB had found his sleep apnea to not be unfitting, yet it had required massive adjustments within his workplace, including having a constantly changing sleep/work schedule, in order for him to be able to remain functional while serving. His commander even went so far as to say that the vast majority of signal intelligence operations would not have been able to accommodate the needs for flexibility imposed by the applicant's sleep apnea. The VA' s rating of 50% aligns with the statement of his commander and properly accounts for the degree of disability caused to him in both civilian and military workplaces by his service-connected sleep apnea. As such, the ABCMR must specifically consider this rating, and give it particular weight given its close temporal relation to his separation and disabilities while in service. Given this requirement, a rating of 80% disability at retirement, as found by the VA, is in order here. p.The criteria for the medical retirement of active duty service members are set outby Title 10, U.S. Code, section 1201. Section 1201 states that a servicemember is eligible for a medical retirement when they are found unfit by a PEB and when their disabilities are greater than 30%, pursuant to the VA Schedule for Rating Disabilities (VASRD). It is undisputable that the applicant was an active duty servicemember, that the PEB found him unfit for service, and that his disabilities at the time were rated pursuant to the VASRD at 80% and were unfitting, well above the 30% threshold. While, in the past the Board has attempted at times to distinguish between ratings granted by the VA and the PEB, based on the allegedly different purpose of said ratings, it is important to stress that this was a VA rating made specifically for a PEB evaluation, and requested by the PEB itself. In short, it is clear that the applicant met all the criteria for a medical retirement, with, as stated before, a disability at retirement of 80%. q. The members of the board are required to act when an applicate demonstrates, via a preponderance of the evidence, that a material error or injustice exists. Here, there is clear evidence to support the existence of a material error and injustice. The applicant, as has been illustrated above, clearly qualified for a medical retirement. As was calculated in the statement of the facts, the applicant, based on payment rates as they were in 2014, would have been materially better off choosing the medical retirement within only 70 months of the commencement of benefits. Assuming that he met the average life expectance of 79 for U.S. men, the poor advice of his assigned military counsel meant as calculated by the payment rates in 2014, a loss of lifetime earnings for him in the amount of $975,000 and a total loss in lifetime earnings and benefits of close to $1.2 million. In short, despite a medical retirement being clearly within his long term financial best interests, his Army assigned staff attorney instead suggested that he should not continue the process of appealing his initial MEB rating decision. Based on this exceedingly poor counsel, he accepted to end the medical appeals process and opted for separation and severance pay, unknowingly losing nearly a million dollars in lifetime earnings in the process. r. Decisions made as a result of poor advice by military counsel that materially prejudice the long term interests of a servicemember are errors and injustices that must be corrected by the BCMRs. (See White v. Secretary of the Army, 878 F.2d 501, 503-6 (D.C. Cir. 1989)). In White, a servicemember made a decision on the basis of poor legal advice by his counsel, and then sought to overturn said decision when he realized, nearly two decades later, that he had been given poor counsel. Though the ABCMR denied his application, and the District Court for the upheld the ABCMR's decision, the Circuit overturned the decision and directed the ABCMR to grant relief to the service member. s. Here, the applicant, similar to the service member in , made a decision based on exceedingly poor advice by his counsel. His counsel assured him, based on alleged projections, that a medical separation was financially preferable for him in the long run than a medical retirement. This was a blatant, and extremely costly, error, yet the applicant, trusting in the counsel assigned to him by the military and his special competence as to the subject at hand, made a decision based on said error. Much like the decision of the service member in , this decision, founded on poor advice by assigned military counsel, must be overturned as an error and injustice by the Board. The Board should thus do so, undo the applicant's election for a medical separation instead of continuing the DES appeals process, and instead grant him a medical retirement at 80% disability, as recommended by the VA. In addition, the Board should fully correct the injury he has suffered and make him whole by granting him back pay in the amount of the difference in payment between the retirement pay he would be due under Title 10, U.S. Code, section 1407 and the separation payment and the VA payments he has waived by accepting the medical retirement. t.The Board should, for the purposes of Concurrent Retirement and DisabilityPayments, correct the applicant's records to show that he had 20 years of qualifying service. This Board is charged with correcting errors or injustice. As has been laid out above, he only accepted separation, instead of seeking to fight as hard as he could to remain within the Army, due to his superior's attempt to force him out. This attempt was quashed thanks to the recommendations of every officer above his battalion commander, and previous officers he had worked for, including the current director of the NSA, who all recognized his stellar service to the Army. Yet, the damage had been done. He needed help. He asked for help. Whatever the Army had asked of him, he had not just given, but given far more than requested. Yet, instead of helping him, his battalion commander had sought to wring every last drop of use out of him, during the darkest period of his life, while also seeking to discard him. Due to this fundamental betrayal by an institution he had given so much of himself to, and the immense physical and mental injuries he was suffering from, he decided that it was not worth fighting to remain. This was despite his longstanding dream having been to remain in the Army until his proper retirement. u.This attempt to force him out instead of helping him, this fundamental betrayal, isthe only reason why the applicant accepted separation, instead of doing his utmost to continue to serve while receiving treatment. Now, he finds himself short by a mere three years of the 20 years of service required to qualify for Concurrent Retirement and Disability Payments. Given that he qualifies for a medical retirement and is receiving VA payments, this represents a staggering financial loss, a loss which has its roots in his commander's actions. v.Conclusion: This Board is tasked with correcting errors and injustices, and beforeit is as a clear example of both. The applicant trusted his Army assigned attorney to provide him with sound counsel based on what should have been well-founded subject matter expertise. Instead, his counsel gave him advice which was extremely detrimental to his long term financial interests. Based on his trust in said advice, he accepted a medical separation, instead of proceeding with the DES appeals process, which would have resulted in him being medically retired at 80% disability. This decision must be corrected. w.The applicant gave 17 years and his physical health to his country throughhonorable service and incredible contributions. His expertise in signals intelligence rightly earned him a Bronze Star Medal through his stellar performance supporting ISAF in Afghanistan, producing and improving critical intelligence flows which both ensured that more service members came home safe to their families and that more enemies of the United States did not. He has sacrificed greatly for his country, both physically and mentally, and has still sought to serve his nation in a civilian role after he could no physically longer serve it in the military. The least his country can do in return is ensure that he is able to access the full scope of the benefits he has earned. The Board is in the perfect position to ensure that this occurs. Undo the decision made under the exceedingly poor advice of the counsel assigned to him and grant him the medical retirement at 80% disability that he has clearly earned. The complete counsel's 22-page statement was provided to the Board for their review and consideration. 4.Following 12 years and 8 months of enlisted service in the Regular Army, theapplicant was appointed a Reserve warrant officer on 13 April 2011 and entered activeduty on 13 April 2011. 5.On 18 April 2014, an MEB determined that the applicant's diagnosis of thoracic spinedegenerative changes failed retention standards in accordance with Army Regulation40-501 (Standards of Medical Fitness). The MEB recommended the applicant's referralto a PEB. The MEB proceedings show he was diagnosed with 18 additional conditionsand or defects, including obstructive sleep apnea, which were deemed to meet retentionstandards in accordance with Army Regulation 40-501. 6.The applicant did not agree with the MEB's findings and recommendations and on 12 May 2014, his MEB counsel submitted an appeal asserting that the applicant'sobstructive sleep apnea condition failed to meet the retention standards of ArmyRegulation 40-501, paragraph 3-41c. Specifically, that he was prescribed a continuouspositive airway pressure (CPAP) machine but he was still suffering from daytimehypersomnolence. 7.The Senior MEB Physician, after consideration of the appeal, confirmed the MEB'soriginal findings and recommendations on 19 May 2014. 8.On 3 August 2014, a PEB found the applicant unfit for further military service due tothoracic spine degenerative changes. The PEB recommended a 10% disability ratingand the applicant's separation with severance pay. 9.The PEB found the applicant's additional 18 medical conditions, including obstructivesleep apnea, not unfitting because the MEB indicated these conditions met retentionstandards; did not indicate that any of these conditions caused profile limitations(functional activities); and, did not indicate that performance issues, if any, were due tothese conditions. 10.The applicant's DA Form 199 (Informal PEB Proceedings) contains the followingstatements in Section VI: a.This case was adjudicated as part of the Integrated Disability Evaluation System(IDES) under the 19 December 2011 Policy and Procedure Directive-type Memorandum (DTM) 11-015. b.The specific VASRD codes to describe the Soldier's condition and the disabilitypercentage was determined by the VA and is documented in a VA memorandum dated 22 July 2014. The disposition recommendation was determined by the PEB based on the VA disability rating proposed and applicable statutes and regulations for the Physical Disability Evaluation System (PDES). 11.On 15 September 2014, the applicant concurred with the PEB's findings andrecommendations and did not request reconsideration of his VA ratings. 12.The applicant's DD Form 214 shows he was discharged on 18 December 2014under the provisions of Army Regulation 635-40 (Disability Evaluation for Retention,Retirement, or Separation), chapter 4, by reason of disability, severance pay, combatzone (enhanced). The DD Form 214 also shows he completed 16 years, 4 months, and6 days of active service. 13.The applicant provided: a.A memorandum from his former company commander, dated 22 May 2014,stating the applicant was unable to fully perform his duties due to issues of alertness and drowsiness as a result of his sleep apnea condition. b.A VA Rating Decision, dated 22 July 2014, and a statement of rated disabilitiesshowing the applicant was granted service-connected disability compensation, with a combined disability rating of 100%, for a number of medical conditions that include obstructive sleep apnea. c.Eight third-party statements that attest to the applicant's outstanding character,dedication to duty, and accomplishment and contributions during and after his military service. 14.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. 15.Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensationfor 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. 16.Title 38, Code of Federal Regulations, Part IV is the VASRD. The VA awardsdisability ratings to veterans for service-connected conditions, including those conditionsdetected after discharge. As a result, the VA, operating under different policies, mayaward a disability rating where the Army did not find the member to be unfit to performhis duties. Unlike the Army, the VA can evaluate a veteran throughout his or herlifetime, adjusting the percentage of disability based upon that agency's examinationsand findings. 17.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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a.The applicant has applied to the ABCMR requesting additional medical conditionsbe determined unfitting for continued military service with a subsequent increase in his military disability rating and change in his current disability separation disposition from separated with disability severance pay to permanent retirement for physical disability. The applicant marked PTSD as an issue related to his request. b.The Record of Proceedings details the applicant’s service and the circumstancesof the case. The DD 214 for the period of Service under consideration shows he entered the regular Army on 13 April 2011 and was separated with $156,892.80 of disability severance pay on 18 December 2014 under provisions provided in Chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012). c.A Soldier is referred to the IDES when they have one or more conditions whichappear to fail medical retention standards as documented on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldier’s referred medical conditions in section I the VA/DOD Joint Disability Evaluation Board Claim (VA Form 21-0819). The Soldier, with the assistance of the VA military service coordinator, lists all conditions they believe to be service-connected disabilities in block 8 of section II or a separate Statement in Support of Claim (VA form 21-4138). d.Soldiers then receive one set of VA C&P examinations covering all their referredand claimed conditions. These examinations, which are the examinations of record for the IDES, serve as the basis for both their military and VA disability processing. All conditions are then rated by the VA prior to the Soldier’s discharge. The physical evaluation board (PEB), after adjudicating the case sent them by the medical evaluation board (MEB), applies the applicable VA derived ratings to the Soldier’s unfitting condition(s), thereby determining their final combined rating and disposition. Upon discharge, the Veteran immediately begins receiving the full disability benefits to which they are entitled from both their Service and the VA. e.On 11 February 2014, the applicant was referred to the IDES for “Bilateralpatellofemoral syndrome.” He claimed fifteen additional conditions on a separate Statement in Support of Claim (VA form 21-4138), including “mental health condition to include depression, and insomnia.” A medical evaluation board (MEB) determined his “Thoracic spine degenerative changes” failed the medical retention standards of AR 40-501, Standards of Medical Fitness. They determined eighteen other medical conditions met medical retention standards, including adjustment disorder with mixed features. f.AHLTA shows the applicant underwent a mental status evaluation on 29 July 2014for possible chapter due to repeated Army Physical Fitness Tests failures. While the applicant was symptomatic with anxiety, depression, and sleep disturbances, the provider found he met medical retention standards. He was seen by psychiatry on 30 September 2014, diagnosed with adjustment disorder, and released without limitation. g.On his Mental Disorders Disability Benefits Questionnaire (aka VA C&P), theprovider documented the diagnosis of “Adjustment Disorder with Mixed Features,” his symptoms of depressed mood, anxiety, chronic sleep impairment, and panic attacks that occur weekly or less often, concluding: “Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by medication h.His senior rater marked the applicant as “Qualified” on his final Officer EvaluationReport with a thru date of 11 August 2014, stating: “CW2 {Applicant}'s performance was satisfactory, he is decisive, well organized and focused on his duties. Mr. {Applicant} is an innovative thinker who works best with minimal guidance and executes the mission of the Theatre Support Activity (TSA). {Applicant} was responsible for maintaining oversight of all job qualification standards and certifications standards within his shop.” i.The applicant non-concurred with the MEB contending his obstructive sleep apneadid fail medical retention standards. His appeal was addressed by a physician who was treating sleep apnea patients. The provider concluded the applicant’s sleep apnea met medical retention standards: “Although this soldier certainly does have moderate to severe obstructive sleep apnea (also related to his body mass index of 40), I would expect a reasonable improvement once the soldier has begun to use his continuous positive airway pressure machine with appropriate titration as necessary. In my experience, I would not expect any difficulties with obtaining a significant reduction in the soldier’s apnea/hypopnea.” j.His limited use of the CPAP machine is seen in a 25 August 2014 AHLTAencounter: “34-year-old male with history of HTN {hypertension}, sleep apnea, obesity, being followed by sleep clinic--last seen 23 July 2014. Sleep clinic states SM {service member} noncompliant with usage of C-pap machine using only average of 1.5 hours/ night. Is presently pending mouth appliance. Requesting extension of 30-day profile that was provided to assist patient with adjustment of C-pap machine and complaining of difficulties sleeping, shortness of breath and uncontrolled HTN ... When discussed with SM that extension of profile was not an option, he became very upset stating he was still having difficulties sleeping and had noted any improvement even with use of profile however, SM recently moved to new unit where he has to report at 0630hrs and states is having difficulties showing up to 0630hrs formation. Upon further discussion, SM became very irritated, stating that "you people are assholes" and " I am tired of being disrespected." Discussed with SM option to discuss further with Chief of Clinic, however, SM declined. Attempts made to obtain resolution were declined by SM stating the profile is what he was here for. Presently undergoing MEB--pending appeal at this time.” k.The case along with his appeal was forwarded to a physical evaluation board(PEB) for adjudication. l.On 3 August 2014, the applicant’s informal PEB found his “Thoracic spinedegenerative changes” to be the sole unfitting medical condition for continued service. They determined the remaining sixteen medical conditions were not unfitting for continued military service. The PEB applied the VBA derived rating of 10% to this condition. m.Because the applicant’s combined military disability rating was less than 30%, thePEB recommended the applicant be separated with disability severance pay. On 15 September 2014, after being counseled on the informal PEB’s findings by her PEB Liaison Officer (PEBLO), the applicant concurred with the informal PEB’s findings, waived his right to a formal hearing, and declined to request a VA reconsideration of his disability rating. n.Review of his records in AHLTA show he was diagnosed with diabetes with theinitiation of oral medication in May 2014. Diabetes requiring oral medication fails the medical retention standard in paragraph 3-11d of AR 40-501, Standards of Medical Fitness (4 August 2011. This new condition should have been evaluated by an MEB and referred to a PEB for adjudication. o.The applicant’s cardiac condition should also have been referred to the PEB foradjudication. AHLTA also shows the applicant was referred to cardiology in May for further evaluation of an abnormal echocardiogram: “34-year-old active-duty male, undergoing MEB. History of abdominal obesity, HTN, HLD {hyperlipidemia}, and abnormal EKG. Echocardiogram results from VA reveal possible resting ischemic heart disease. Septum appears mildly hypokinetic. Recommends further cardiology evaluation. Please eval and treat.” p.His VA Heart Conditions (including Ischemic & Non-ischemic Heart Disease,Arrhythmias, Valvular Disease and Cardiac Surgery) Disability Benefits Questionnaire completed on 28 March 2014 shows the applicant had been diagnosed with chronic ischemic heart disease. Though it notes his condition had improved since 2008, it states he continued to experience fatigue and shortness of breath, and an echocardiogram revealed left ventricular hypertrophy with an estimated left ventricular ejection fraction of 50-55%, diastolic dysfunction, and a mildly hypokinetic septum suggesting resting ischemic heart disease. q.One measure of the heart’s ability to support physical activity in the MET ormetabolic equivalent. For VA purposes, it may either be exercise based or interview based). The applicant’s was based on his interview and was estimated to be between 5-7 METs stating “This METs level has been found to be consistent with activities suchas walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), heavyyard work (digging). r.Paragraph 3-21e in AR 40-501 shows that myocardial disease which is FunctionalClass II or worse (New York Heart Association or Canadian Cardiovascular Society) fails medical retention standards. Table 3-1 of AR 40-501 lists these standards which would meet and fail retention standards. Based on the limited information in the record, the applicant’s cardiac condition was either a marginal class I or class II and so should have undergone further evaluation before it was declared to meet medical retention standards. s.The 22 July 2014 VA Ratings Decision for his IDES processing shows his cardiaccondition was rated at 30%: t.We have assigned a 30 percent evaluation for your ischemic heart disease basedon: •Evidence of cardiac hypertrophy on echocardiogram • Workload of greater thanfive METs but not greater than seven METs results in dyspnea, fatigue, angina,dizziness, or syncope. u.As for his mental health condition, there is no probative the applicant’s adjustmentdisorder failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge. Furthermore, there is no evidence that 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. v.The condition was rated at 10% while the applicant was in the IDES process andis currently at 10%. JLCV shows he has recently been diagnosed with PTSD but it is not currently a rated disability. w.It is the opinion of the ARBA Medical Advisor that a referral of his case back to theDES is warranted for evaluation of his diabetes and cardiac condition. BOARD DISCUSSION: 1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that partial relief was warranted. The Boardcarefully considered through counsel the applicant's record of service, documentssubmitted in support of the petition and executed a comprehensive and standard reviewbased on law, policy and regulation. Upon review through counsel of the applicant’spetition, available military records and the medical advisory the Board concurred withthe advising official finding a referral of the applicant’s case back to the DES iswarranted for evaluation of his diabetes and cardiac condition. Based upon thepreponderance of the evidence, the Board agreed that counsel demonstrated theapplicant’s record should be directed to be entered into the Disability Evaluation System(DES) for medical evaluation consideration, with all relief dependent upon a finalmedical determination. Therefore, the Board granted partial relief. 2.Referral to the IDES occurs when a Soldier has one or more conditions whichappear to fail medical retention standards as documented on a duty liming permanentphysical profile. The DES compensates an individual only for service incurred medicalcondition(s) which have been determined to disqualify him or her from further militaryservice. The DES has neither the role nor the authority to compensate servicemembers for anticipated future severity or potential complications of conditions whichwere 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 arecommendation for partial relief. As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by directingthe applicant be entered into the Disability Evaluation System (DES) and a MedicalEvaluation Board (MEB) convened to determine whether the applicant’s condition(s),to include [applicable conditions], met medical retention standards at the time ofservice separation.a.In the event that a formal physical evaluation board (PEB) becomes necessary, theindividual concerned will be issued invitational travel orders to prepare for andparticipate in consideration of her case by a formal PEB. All required reviews andapprovals will be made subsequent to completion of the formal PEB.b.Should a determination be made that the applicant should have been separatedunder the DES, these proceedings will serve as the authority to void his administrativeseparation and to issue him the appropriate separation retroactive to his originalseparation date, with entitlement to all back pay and allowances and/or retired pay,less any entitlements already received. 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, U.S. Code, section 1552(b), provides that applications for correction ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice. This provision of law also allows the ABCMR to excuse an applicant's failure totimely file within the 3-year statute of limitations if the ABCMR determines it would be inthe 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 PDES and executes Secretary of the Armydecision-making authority as directed by Congress in chapter 61 and in accordance withDepartment of Defense Directive 1332.18 and Army Regulation 635-40. 3.Army Regulation 635-40 establishes the Army DES 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. a.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 or 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 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 whose medical condition did not exist prior to service 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. 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. b.The mere presence of an impairment does not, of itself, justify a finding ofunfitness 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 Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. c.The percentage assigned to a medical defect or condition is the disability rating. Arating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the VASRD. The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting or ratable condition is one which renders the Soldier unable to perform the duties of his or her office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or her employment on active duty. d. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 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%. 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%. 5. DTM 11-015, dated 19 December 2011, explains the IDES. It states: a. The IDES is the joint Department of Defense (DoD)-VA process by which DoD determines whether wounded, ill, or injured service members are fit for continued military service and by which DoD and VA determine appropriate benefits for service members who are separated or retired for a service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the military departments and a single set of disability ratings provided by VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DoD will follow the existing policies and procedures requirements promulgated in DoDI 1332.18 and the Under Secretary of Defense for Personnel and Readiness memoranda. All newly initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the military department concerned approves the exclusion of the service member due to special circumstances. Service members whose cases were initiated under the legacy DES process will not enter the IDES. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA Compensation and Pension standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with BCMR procedures of the military department concerned, the former service member may request correction of his or her military records through his or her respective military department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the service member may request correction of his or her military records through his or her respective military department BCMR. e. If, after separation from service and attaining veteran status, the former service member desires to appeal a determination from the rating decision, the veteran has one year from the date of mailing of notice of the VA decision to submit a written notice of disagreement with the decision to the VA regional office of jurisdiction. 6. The DoD PDBR, was legislated by Congress and implemented by DoD to ensure the accuracy and fairness of combined disability ratings of 20% or less assigned to service members who were discharged between 11 September 2001 and 31 December 2009. • The PDBR uses medical information provided by the VA and the military department • Once a review is complete, the PDBR forwards a recommendation to the secretary of the respective branch of the armed services. • It is up to the individual service branch to make the final determination on whether to change the original disability determination 7. Concurrent Retirement and Disability Pay (CRDP), as explained by the Defense Finance and Accounting Service, allows military retirees to receive both military retired pay and VA compensation. This was prohibited until the CRDP program began on 1 January 2004. CRDP is a "phase in" of benefits that gradually restores a retiree's VA disability offset. This means that an eligible retiree's retired pay will gradually increase each year until the phase in is complete effective January 2014. Individuals do not need to apply for CRDP. If qualified, the individual will be enrolled automatically. In order to be eligible, the individual must be a regular retiree with a VA rating of 50% or greater. If the individual was placed on disability retirement, but would be eligible for military retired pay in the absence of the disability (i.e. 20 years of service), the individual may be entitled to receive CRDP. 8. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by ARBA be provided with a copy of any correspondence and communications (including summaries of verbal communications) correspondence and communications (including summaries of verbal communications) correspondence and communications (including summaries of verbal communications) correspondence and communications (including summaries of verbal communications) correspondence and communications (including summaries of verbal communications) correspondence and communications (including summaries of verbal communications) correspondence and communications (including summaries of verbal communications) correspondence and communications (including summaries of verbal communications) //NOTHING FOLLOWS//