IN THE CASE OF: BOARD DATE: 6 July 2023 DOCKET NUMBER: AR20220007831 APPLICANT REQUESTS: in effect, the following: * reconsideration of her prior request for a duty-related physical disability retirement * the issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) for her service in the U.S. Army Reserve (USAR) * amendment to her discharge date to reflect 15 December 2010 APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * self-authored statement * Department of Veterans Affairs (VA) Rating Decision, dated 22 August 2021 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 AR20202221828 on 29 April 2021. 2. The applicant states: a. She is writing in response to the decision letter dated 1 February 2022, pertaining to her request for correction of military records. Please find her enclosed record of a 100% disability rating from the VA, dated 22 August 2021, which she is submitting as evidence for her date of discharge from her USAR unit, the 322nd Medical Company, in Southfield, MI, reflecting the date of 15 December 2010. b. Please provide her with her DD Form 214 from the USAR and any other benefits due to her pertaining to this decision and her honorable discharge. 3. Multiple service documents in the applicant’s available records reflect her date of birth as. 4. After prior honorable enlisted service in the U.S. Coast Guard from 14 January 1974 through 10 August 1976, the applicant was appointed as a Reserve commissioned officer of the Army in the rank/grade of second lieutenant (2LT)/ O-1 effective 27 April 1994. 5. A DA Form 3349 (Physical Profile) shows the applicant was given a permanent physical profile rating of “3” in factors U (Upper extremities) and L (Lower extremities) for shoulder, back, and foot pain. She was limited from the functional activity of moving with a fighting load at least 2 miles, the running event in the Army Physical Fitness Test (APFT), and was not deemed healthy without any medical condition preventing deployment. 6. A Headquarters, 88th Regional Support Command memorandum, dated 14 October 2010, notified the applicant that it was determined as a result of her medical examination she was medically disqualified for continued service in the USAR under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. She was advised that as a result of her medical disqualification, she was afforded the following options: a. She may request reassignment to the Retired Reserve (with 20 qualifying years of service, for retired pay at age 60). b. If she had at least 15 years but less than 20 years of qualifying service for retired pay purposes, she may request reassignment to the Retired Reserve with early qualification eligibility to receive pay at age 60. c. She may request an honorable discharge from the USAR. d. She may request a review of her medical disqualification by the appropriate medical board. 7. A DA Form 4187 (Personnel Action), shows on 12 November 2010, the applicant indicated she understood she was subject to involuntary separated from the Selected Reserve due to medical disqualification and therefore elected reassignment to the Retired Reserve with early qualification for retired pay at age 60 based on having earned at least 15 qualifying years, but less than 20 qualifying years of service for retired pay at age 60 and requested issuance of a 15-Year Memorandum. 8. A DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 12 November 2010, shows on 15 November 2010, the applicant’s immediate commander approved and submitted through higher headquarters a request for the applicant’s reassignment to the Retired Reserve, based on early retirement due to medical disqualification with 15 qualifying years of service. 9. Headquarters, 88th Regional Support Command Orders 10-319-00058, dated 15 November 2010, reassigned the applicant to the Retired Reserve effective 15 December 2010, due to medical disqualification – not a result of own misconduct, under the provisions of Army Regulation (AR) 140-10 (USAR Assignments, Attachments, Details and Transfers). Of note, the applicant’s age on the effective date of her reassignment to the Retired Reserve on 15 December 2010 is years old; while fully eligible for transfer to the Retired Reserve at that age, she had not yet reached the age of 60 required for receipt of retired pay under the provisions with which she was transferred to the Retired Reserve. 10. A Certificate of Retirement shows the applicant, having served faithfully and honorably, was retired from the U.S. Army on 15 December 2010. 11. A DA Form 5016 (Chronological Statement of Retirement Points) shows that between the dates of 17 December 1973 and 16 December 2010, the applicant completed 16 years, 3 months and 15 days of qualifying service retirement. 12. There is no evidence of record in the applicant’s available records that she served on active duty for a period of 90 days or greater during her USAR service spanning from 27 April 1994 through 15 December 2010, warranting the issuance of a DD Form 214. 13. The applicant previously provided a letter from Dr., dated 25 September 2013, showing the applicant was under her care for approximately 9 months for ongoing complaints of chronic pain and loss of function to her cervical spine, thoracic spine, the right shoulder and the right knee. She also had chronic tinnitus with hearing loss in the right ear greater than the left which she reported is due to her drilling and shooting to qualify on her weapon during her Soldiering duties in the USAR. Falling while serving in the U.S. Coast Guard injured her right knee, while marching, running, and carrying a pack in the USAR were all aggravators to the knee and spine and a tent falling on her right shoulder and neck resulted in chronic injuries of the shoulder, neck and thoracic spine. 14. A U.S. Army Human Resources Command (AHRC) memorandum, dated 31 October 2013, notified the applicant of her eligibility for retired pay at age 60 (15-Year Letter). She was informed that as a member of the Selected Reserve who had been medically disqualified from further active service and had attained at least 15 years, but less than 20 years of qualifying service, she was eligible to apply for retired pay and benefits upon attaining age 60. Her eligibility was determined based on the following qualifications: a. She was not eligible for retention in the Selected Reserve due to medical disqualification. b. She completed at least 15, but less than 20 years of qualifying service. c. She completed the last required years of qualifying service while a member of a Reserve component. d. She requested transfer to the Retired Reserve. 15. AHRC Orders C12-399769, dated 19 December 2013, retired the applicant and placed her on the Army of the United States Retired List effective 5 September 2013 [the date of the applicant’s 60th birthday]. The additional instructions strongly recommended the applicant contact her supporting Retirement Services Office and make and appointment for a retirement briefing and the issuance of new identification cards. 16. The applicant previously provided multiple witness statements, all of which have been provided to the Board for review, corroborating the applicant’s injury to her shoulder while involved in a vehicular accident during annual training in May 2003, her degenerative changes to her spine and neck and general decline in physical health due to the rigors of her military duty. 17. Previously provided VA Progress Notes, dated 20 February 2019, provided in full to the Board for review, show the applicant had complaints of neck pain, low back pain, bilateral knee pain, bilateral foot pain, and right shoulder pain, related to her military service. In particular, she notes foot and knee pain in Basic Combat Training, injury to her right shoulder when a tent fell on her, and injury to her neck and back as the result of an accident while a passenger in a military vehicle. 18. The applicant previously applied to the ABCMR on 18 November 2019, requesting physical disability retirement and the issuance of a DD Form 214 for her USAR service. As evidenced in ABCMR Record of Proceedings for Docket Number AR20202221828, on 29 April 2021, the Board determined there was sufficient evidence available to refer her medical records to the Integrated Disability Evaluation System (IDES) for further evaluation, but there was insufficient evidence supporting the need to issue a DD Form 214, as there was no evidence of record the applicant served on active duty for a period of 90 days or greater. 19. A VA Rating Decision, dated 22 August 2021, shows the applicant was assigned a 100 percent permanent and total service-connected disability rating effective 21 June 2021 for the following conditions: * intervertebral disc syndrome and degenerative joint/disc disease, thoracolumbar spine increased from 20 percent effective 28 February 2011 to 40 percent * lumbar radiculopathy, sciatic nerve, right lower extremity increased from 10 percent effective 28 February 2011 to 40 percent 20. In response to the 29 April 2021 Board decision to send the applicant’s medical records to IDES for further evaluation, an MEB Physician from Ireland Army Health Clinic, U.S. Army Medical Department Activity, Fort Knox, KY, reviewed her records and provided an opinion via memorandum on 11 January 2022, stating the conclusion drawn from the available records is there is no objective evidence that would support ta change to the reason for the applicant’s separation from the Army. 21. An Office of the Surgeon General memorandum, dated 18 January 2022, shows the Office of the Surgeon General endorsed the opinion provided by the Fort Drum, NY [sic Fort Knox, Ky] MEB section regarding the applicant’s concerns. Medical evidence based on the review of the applicant’s medical records indicates an MEB was not warranted at the time of the applicant’s separation. 22. A 27 October 2022 letter from Army Review Boards Agency (ARBA), informed the applicant that the Board decision of 29 April 2021 was referred to the Office of the Surgeon General to determine if she should have been retired or discharged by reason of physical disability through the DES. After a thorough review of her medical records, it was determined that she did not require disability processing at the time of her separation and a copy of the Office of the Surgeon General decision was enclosed for her review. 23. 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. 24. Title 38, USC, 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. 25. Title 38, CFR, 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 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. 26. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. The documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record - Armed Forces Health Longitudinal Technology Application (AHLTA) and MHS Genesis, the VA electronic medical record – Joint Longitudinal Viewer (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting a reconsideration of her prior request for a duty-related physical disability retirement (AR20202221828) for an increased physical disability retirement rating. In essence, the applicant is requesting a referral to the Disability Evaluation System (DES). She states: “I am writing regarding the letter of decision of my Military Record Correction that I received on 2-25-22 Dated Feb 01, 22. Enclosed please find record of 100% disability from the Department of Veterans Affairs Dated 8/22/2021 which I am submitting as evidence for my date of discharge from my Reserve Component, the 322 Med Co A in Southfield, MI, to reflect the of 15-December-2010. Please allow my DD 214 from the Army Reserve any other benefits due me regarding this decision; Honorable Discharge.” c. Because of the period of Service under consideration, there are no encounters in AHLTA, and no documents in iPERMS, e-PEB or MEDCHART for review beside her supporting documents. d. There were no new additional documentations in her supporting document for review, except her VA Rating Decision dated 22AUG21, which increase her service connected for her intervertebral disc syndrome and degenerative joint/disc disease, thoracolumbar spine from 20% to 40% and increase her service connection for lumbar radiculopathy, sciatic nerve, right lower extremity from 10% to 40%, and increase her service connect for lumbar radiculopathy, sciatic nerve, left lower extremity to a total service-connected disability, permanent in nature. e. The Applicant has shown that the VA has increased her service-connected disability ratings for her medical conditions. However, the Applicant did not have any additional evidence to show that she was disabled at this rating at the time her discharge from the military service. f. The Disability Evaluation System (DES) process rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual impairment(s) disqualify him or her from further military service. However, the DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were the cause for their prior medical separation; or for compensating conditions which did not contribute to career termination. These roles and authority are granted by Congress to the Department of Veterans' Affairs and executed under a different set of laws. g. Given the available documentations reviewed, it is the opinion of the Agency Medical Advisor that neither a change in her military disability ratings nor a referral of her case back to the DES is warranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The applicant served in the USAR from 7 April 1994 through 15 December 2010. The DD Form 214 is a record of active duty. There is no evidence of record in her available records that she served on active duty for a period of 90 days or greater during her USAR service warranting the issuance of a DD Form 214. b. The applicant was found medically disqualified from continuing her serve in the USAR and as such, she was reassigned to the Retired Reserve effective 15 December 2010, due to medical disqualification. There is no evidence she continued service in the Selected Reserve beyond this date and as such, the Board found no reason to amend her discharge date. c. The evidence further shows the Board previously granted her relief in the form of referring her records to the disability evaluation system (DES) for review. A review by an MEB physician found no objective evidence that would support ta change to the reason for the applicant’s separation from the Army. The Office of the Surgeon General endorsed the opinion that an MEB was not warranted at the time of the applicant’s separation. The applicant provides no new information, aside from documentation showing the VA has increased her service-connected disability ratings for her medical conditions. She did not have any additional evidence to show that she was disabled at this rating at the time her discharge from the military service. The DES process rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual impairment(s) disqualify him or her from further military service. The VA has the role to compensate service members for anticipated future severity or potential complications of conditions which were the cause for their prior medical separation; or for compensating conditions which did not contribute to career termination. Based on the available documentations reviewed, the Board determined that neither a change in her military disability ratings nor a referral of her case back to the DES is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Dockets Number AR20202221828 on 29 April 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. 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 (Disability 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. 2. Army Regulation 635-40 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. 3. Army Regulation 40-501 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 with the following caveats: a. USAR or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Reserve Component Soldiers pending separation for In the Line of Duty injuries or illnesses will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 635-40. c. Normally, Reserve Component Soldiers who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 (USAR Assignments, Attachments, Details and Transfers) or discharged from the Reserve Component per Army Regulation 135–175 (Separation of Officers), Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative Separations), or other applicable Reserve Component regulation. They will be transferred to the Retired Reserve only if eligible and if they apply for it. d. Reserve Component Soldiers who do not meet medical retention standards may request continuance in active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reserve Component Soldiers with non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. 4. Army Regulation 140-10, covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers. Chapter 6 (Transfer to and from the Retired Reserve) states assignment to the Retired Reserve is authorized, with the exception of enlisted Soldiers subject tin involuntary separation. Eligible Soldiers may be allowed to transfer to the Retired Reserve if the following applies: a. They are entitled to receive retired pay from the U.S. Armed Forces because of prior military service or disability. b. They have 20 qualifying years of service for retired pay at age 60 and are eligible to receive the notification of eligibility (NOE) of Retired Pay at age 60 (20-year Letters). c. They are medically disqualified for retention in an active status, not as a result of their own misconduct, and have completed at least 15 qualifying years of service, but less than 20 qualifying years of service for retired pay, and are eligible to receive the NOE for Retired Pay at Age 60 (15-Year Letter). The 15-Year NOE pertains only to members of the Selected Reserve and that loss of qualification to continue in the Selected Reserve must be solely due to medical disqualification. d. They have completed a total of 20 years of active service in the U.S. Armed Forces. 5. Title 10 USC, section 12731b (Special rule for members with physical disabilities not incurred in the line of duty), enacted 23 October 1992, provides in pertinent part that in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes as of 1 October 1991. This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC. 6. 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. 7. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribes policies and procedures regarding separation documents, including the standardized preparation of the DD Form 214 (Certificate of Release or Discharge from Active Duty). The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. A DD Form 214 will be prepared for all personnel (except as stated in b) at the time of their retirement, discharge, or release from the Active Army. Included in the personnel issued a DD Form 214 are members of the ARNG and USAR separated after completing 90 days or more of continuous Active Duty Training (ADT), Full Time Training Duty (FTTD), or active duty support and after completing initial ADT which resulted in the award of a Military Occupational Specialty (MOS), even though the active duty was less than 90 days. 8. 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. 9. 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. 10. Title 10, U.S. Code, section 1556 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) AR20220007831 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1