IN THE CASE OF: BOARD DATE: 11 January 2023 DOCKET NUMBER: AR20220005876 APPLICANT REQUESTS: * a physical disability retirement * transfer of education benefits to his dependent APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record) * email thread, 16 March 2021 FACTS: 1. The applicant states his discharge should have been categorized as a medical retirement as opposed to an Individual Readiness Reserve (IRR) Transfer as he was undergoing a medical review board process prior to Qualitative Management Program (QMP) action. The QMP action was not appropriate; however, he did not pursue overturning that action because he was transferred to the IRR while his medical evaluation was still processing. He is currently at an 80% rating with additional medical evaluations ongoing. At minimum his dependent should be deemed eligible for receiving his Post 911 GI Bill benefits. At best his separation should be characterized as a medical retirement as opposed to "Transfer to Retired Reserve.” 2. The applicant provides an email thread from U.S. Army Resources Command (HRC), dated 16 March 2021, which states his Transfer or Education Benefits (TEB) was rejected due to his selection for QMP following his approval to transfer his Post 9/11 GI Bill to his dependents. Since he was separated prior to fulfilling his service obligation for transferring his Post 9/11 GI Bill. The applicant’s Obligation End Date (OED) was 18 October 2020, and he was separated from the service on 31 January 2020. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 17 March 1994. b. A Report of Medical Examination, dated 22 June 1992, shows the applicant was undergoing an examination for the purpose of enlistment and airborne qualification. The applicant’s clinical evaluation was marked normal and in block 77 (Examinee) he was marked qualified for service. c. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 1 October 1997, shows the applicant was treated on 3 September 1997 at Womack Army Medical Center for a left ankle fracture due to a hard landing while participating in airborne operations. A formal line of duty investigation was not required, and the injury was considered to have been incurred in line of duty (LOD). d. He was honorably released from active duty on 1 September 2000. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 6 years, 5 months, and 15 days of active service. He was assigned separation code MBK and the narrative reason for separation listed as “Completion of Required Active Service.” e. The applicant’s service record is void of his separation orders and additional documentation to show he was transferred into the U.S. Army Reserve; however, a DD Form 4 (Enlistment/Reenlistment Document) shows the applicant reenlisted in the USAR on 29 May 2002 for a period of 6 years. f. The applicant served three honorable periods of active duty: * 4 August 2001 to 11 March 2002 – 7 months and 8 days * 21 September 2006 to 23 January 2008 – 1 year, 4 months, and 3 days * 13 February 2009 to 19 March 2009 – 1 year, 1 month, and 7 days g. He received three DA Forms 2166-9-2 (NCO Evaluation Report) while on TPU and Active Guard Reserve (AGR) status which show the applicant passed the Army Physical Fitness Test (APFT): * 17 October 2015 to 4 June 2016 – APFT 7 November 2015 * 5 June 2017 to 8 April 2018 – APFT 12 December 2017 * 10 March 2019 to 30 January 2020 – APFT 12 October 2019 h. Orders 340-0002, dated 6 December 2019, released the applicant from active duty, not by reason of physical disability, with an effective date of 1 February 2020. i. He was honorably released from active duty on 1 February 2020. His DD Form 214 shows he completed 3 years, 5 months, and 10 days of active service. He was assigned separation code MBK and the narrative reason for separation listed as “Completion of Required Active Service.” j. Orders C-05-105100, dated 13 May 2021, reassigned the applicant to The Retired Reserve effective 2 February 2021. 4. On 31 October 2022, the applicant was notified of the decision for ABCMR Docket Number AR202100012433. The applicant requested a change in the narrative reason for separation and a change in the reentry code to allow him to transfer to the IRR to join a TPU. The Board found: a. The applicant's DD Form 214 for the period ending 1 February 2020 did not accurately reflect the reason for his release from active duty, HRC's correction of the transition center's error well over a year later was inappropriate. Although the DD Form 215 he was issued is administratively correct, the Board found that introducing this negative information into his record in a less than timely manner was unnecessary given his status at the time. Based on a preponderance of evidence, the Board determined the DD Form 215 should be removed from his record and any related records should be corrected to show the separation code, RE code, and narrative reason for separation as they are shown on the DD Form 214. b. The Board found no basis for returning the applicant to the IRR. He may follow the procedures described in chapter 6 of AR 140-10 if he wished to join a TPU. The applicant’s DD Form 214 was reissued on 5 December 2022. 5. The applicant's service record was void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 6. Public Law 110-252 establishes the legal limitations on the transferability of unused 9/11 GI Bill benefits. Section 3020 limits transfer to members of the Armed Forces who are serving on active duty on or after 1 August 2009. The applicant retired within 90 days of program implementation and met the other TEB transfer requirements. Significant measures were taken to ensure all members of the Armed Forces knew of the benefit and requirement to transfer; however, many Soldiers who left service during the implementation were not fully aware of the requirements to transfer prior to leaving military service, 7. Public Law 110-252, as amended by Public Law 111-377, identified the qualifications to receive the Post-9/11 GI Bill, one of which was that the service member must have performed active service on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill. Public Law 110-252 established legal requirements on the transferability of unused benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 8. DoD policy further states the Secretaries of the Military Departments were instructed to provide active-duty participants individual pre-separation or release from active-duty counseling on the benefits under the Post-9/11 GI Bill, and to document accordingly and maintain records for individuals who received supplemental educational assistance under Public Law 110-252, section 3316. 9. By regulation (AR 635-40), the mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Paragraph 3-4 states 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: a. 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. b. 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. 10. By regulation (AR 40-501), medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects are causes for rejection or medical unfitness for these specialized duties. If the profile is permanent the profiling officer must assess if the Soldier meets retention standards. Those Soldiers on active duty who do not meet retention standards must be referred to a medical evaluation board. Once a determination of physical unfitness is made, disabilities are rated using the VA schedule of disability rating. 11. 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. 12. Title 38, United States Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 13. Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to Veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his/her duties. Unlike the Army, the VA can evaluate a Veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 14. 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 is applying to the ABCMR requesting that his retirement for length of service be revoked and that he be referred to the Disability Evaluation System (DES). He states in part: “My discharge should have been categorized as MEDICAL RETIREMENT as opposed to IRR Transfer as I was undergoing a medical review board process prior to QMP action. The QMP action was not appropriate, however I did not pursue overturning that action as I was transferred to the IRR while my medical evaluation was still processing is currently at 80% rating with additional medical evaluations ongoing.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Orders published by the U.S. Army Human Resources Command on 13 May 2021 transferred the applicant to the Retired Reserve effective 2 February 2021. It stated the reason for transfer “Competing 20 or more years reserve duty.” c. The applicant does not identify a medical condition(s) for which he should have been referred to the DES. d. Review of his records in MEDCHART shows he was placed on a non-duty limiting permanent physical profile for “Bilateral knee pain” on 22 April 2015. The profiling officer wrote “No soldier skill limitations. Alternate aerobic event in lieu of run for APFT.” No other conditions were listed on the profile. The applicant was marked as capable of performing all the functional activities required of all Soldiers, including live in an austere environment. The profile simply allowed the applicant to perform an alternate aerobic event in lieu of the 2-mile run event for his Army Physical Fitness Test (APFT). No further permanent profiles were issued. e. The applicant underwent his pre-separation physical examination on 16 December 2019 after which the provider found him qualified for retirement and without a medical condition failing the medical retention standards of AR 40-501, Standards of Medical Fitness: “Soldier is medically cleared for RETIREMENT. Soldier does not have any medical conditions requiring additional evaluation, new referral or that might interfere with current duty/training and military duties.” f. Review of his records in AHLTA shows his mental health condition was reviewed on 13 January for possible referral to the DES. The review provider concluded the applicant met medical retention standards and referral to a medical evaluation board (MEB) was not indicated: “Adjustment disorder - Meets retention standards per AR 40-501 Chapter 3-33, 3-35. There is no documentation that this condition has required recurrent or extended hospitalizations. SM is no history of profiles for BH conditions. There is a lack of documentation that this condition has failed to respond to treatment and limits duty. Per AHLTA note from Dr. ., Clinical Psychologist, dated 13AUG19, "though SM {service member} reports having occupational impairment due to his adjustment disorder, he still has been able to perform his job and has not received any negative action regarding his work performance." "He complains that he is doing the job of several people, because he is only stable personnel in the office ... Dr. did assessment for PTSD on 21OCT19 and states "because of the results of written assessments and the diagnostic overview, I think there is a high likelihood that SFC {Applicant} meets criteria for diagnosis of PTSD." While this note does support the diagnosis of PTSD, I do not see adequate documentation that this condition does not meet retention standards. At this time the available medical records to not reflect MRDP {medical retention determination point} and needs for MEB.” g. The applicant’s NCO Evaluation Reports show he consistently passed his Army physical fitness test and maintained height and weight standards. On his final report, his senior rater marked him as “Qualified” and went on to opine: “SFC {Applicant} demonstrates the capability to be successful in future assignments, send to next NCOES and promote at the needs of the Army. h. Paragraph 1-1b of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017) states a purpose of the DES is to: “Provide benefits for eligible Soldiers whose military Service is terminated because of a service-connected disability.” i. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his retirement. Thus, there was no cause for referral to the Disability Evaluation System. 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 length of service retirement. j. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings. However, the DES compensates an individual only for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. k. It is the opinion of the ARBA Medical Advisor that referral of his case to the DES is 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 advising official finding that referral of his case to the DES is unwarranted. The Board noted there is no evidence the applicant had any medical condition which would have failed the medical retention standards prior to his retirement. Furthermore, The Board found 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 length of service retirement. 2. Based on public law, the Board determined the applicant did not meet his service obligation for transferring his Post 9/11 GI Bill. Evidence in the record show the applicant’s Obligation End Date (OED) was 18 October 2020, and he was separated from the service on 31 January 2020, 9 months short of his required 48 months service requirement. Based on this, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. Public Law 110-252 establishes the legal limitations on the transferability of unused 9/11 GI Bill benefits. Section 3020 limits transfer to members of the Armed Forces who are serving on active duty on or after 1 August 2009. The applicant retired within 90 days of program implementation and met the other TEB transfer requirements. Significant measures were taken to ensure all members of the Armed Forces knew of the benefit and requirement to transfer; however, many Soldiers who left service during the implementation were not fully aware of the requirements to transfer prior to leaving military service, 2. Public Law 110-252, as amended by Public Law 111-377, identified the qualifications to receive the Post-9/11 GI Bill, one of which was that the service member must have performed active service on or after 11 September 2001 in order to be eligible for the Post-9/11 GI Bill. Public Law 110-252 established legal requirements on the transferability of unused benefits to those members of the Armed Forces who were serving on active duty or as a member of the Selected Reserve on or after 1 August 2009. 3. The Department of Defense (DoD) established the criteria for eligibility and the transfer of unused education benefits to eligible family members on 22 June 2009. The policy limits the entitlement to transfer education benefits to any member of the Armed Forces on or after 1 August 2009, who, at the time of the approval of his or her request to transfer entitlement to educational assistance under this section, was eligible for the Post-9/11 GI Bill, and: a. had at least 6 years of service in the Armed Forces on the date of election and agreed to serve 4 additional years in the Armed Forces from the date of election; b. had at least 10 years of service in the Armed Forces (active duty and/or service in the Selected Reserve) on the date of election, was precluded by either standard policy (Service or DoD) or statute from committing to 4 additional years, and agreed to serve for the maximum amount of time allowed by such policy or statute; or c. was or became retirement eligible during the period from 1 August 2009 through 1 August 2013. A service member was considered to be retirement eligible if he or she had completed 20 years of active service or 20 qualifying years of Reserve service. 4. DoD policy further states the Secretaries of the Military Departments were instructed to provide active-duty participants individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill, and to document accordingly and maintain records for individuals who received supplemental educational assistance under Public Law 110-252, section 3316. 5. The Department of Defense (DOD) Directive Type Memorandum (DTM) 09-003 for the Post-9/11 GI Bill Memorandum, dated 22 June 2009, and the U.S. Army Post-9/11 GI Bill Policy Memorandum, dated 10 July 2009, states: a. DTM 09-003, attachment 2, paragraph 3f, "Designation of Transferee. An individual transferring an entitlement to educational assistance under this section shall, through notification to the Secretary of the Military Department concerned, as specified in paragraph 3i of his attachment: (1) Designate the dependent or dependents to whom such entitlement is being transferred." b. DTM 09-003, attachment 2, paragraph 3i, "Procedures. All requests and transactions for individuals who remain in the Armed Forces will be completed through the TEB web at https://www.dmdc.osd.mil/TEB/." The TEB website's URL is now http:www.dmdc.osd.mil/milConnect. 6. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 7. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 8. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 9. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 10. Title 38 U.S. Code, section 1110 (General - Basic Entitlement), states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 11. Title 38 U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 12. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005876 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1