IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20220007896 APPLICANT REQUESTS: in effect, a physical disability retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * ARBA Online Application in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 26 September 2007 * Army Human Resource Command (HRC) Awards and Decoration Branch letter, 13 September 2021 * DD Form 215 (Correction to DD Form 214) * NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) * Department of Veterans Affairs (VA) civil service preference certificate * HRC Awards and Decoration Branch letter, 21 February 2008 * Permanent Orders 052-10 * Permanent Orders 052-11 * ABCMR letter, 5 March 2008 * DD Form 149, 7 September 2007 * Orders 243-0181 * Orders 144-174 * Orders 251-656 * Medical Records * VA Rating Decision, 29 March 2023 * VA Rating Decision, 28 March 2023 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 states he was in the Nevada Army National Guard when he was deployed to Iraq. He was there from 2006-2007. He was wounded in combat by an IED/EFP roadside bomb. He received a mild Traumatic Brain Injury and a spinal cord injury. He received a Purple Heart and the Combat Action Badge. He transferred from the National Guard to the Army Reserve then to the Inactive Ready Reserve where his term of service expired and mustered out of the service altogether. He didn't have the opportunity to formally out process prior to his expiration of service. He did not have the opportunity to set himself up to be on the Permanent Disability Retired List (PDRL) which would guarantee a military retirement and Combat Related Special Compensation (CRSC). This was mostly due to his ignorance until recently. He is an honorably discharged veteran. He is currently at 90 percent VA disability rating and looking to increase to 100 percent. 3. The applicant enlisted in the United States Army Reserve on 7 April 2004 for a period of 8 years. The applicant served on active duty for training from 24 August 2004 to 21 January 2005. He completed his required was awarded the military occupational specialty (MOS) 31B (military police). 4. The applicant enlisted in the Army National Guard of the United States and the state of Nevada on 28 September 2005 for a period of 4 years 10 months 26 days. 5. Orders 144-174 show the applicant was ordered to active duty in support of Operation Iraqi Freedom effective 4 July 2006. 6. He attended the Motor Transport Operator courses from 3 June 2006 to 30 June 2006 and was awarded the MOS 88M (heavy vehicle driver). 7. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows on 22 July 2007 in Scania, Iraq the applicant was injured by an improvised explosive device (IED) explosion on a convoy route. The applicant was the driver of an LMTV used as a gun truck on a convoy from Scania to LSA Adder when his vehicle was struck by an IED/EFP. He was seen at FOB Scania TMC and treated for concussion and returned to duty the next day. His injury was considered to have been incurred in the line of duty (LOD). A memorandum with the subject: Line of Duty Determination shows the applicant’s post-concussion syndrome, acoustic barotrauma, and back sprain that occurred during Operation Iraqi Freedom is approved as in the line of duty. 8. The applicant was honorably released from active duty on 26 September 2007. 9. The applicant was awarded the Purple Heart on 21 February 2008 for wounds received as a result of hostile actions on 22 July 2007. He was also awarded the Combat Action Badge for actively engaging or being engaged by the enemy. 10. The applicant attended a service school from 6 July 2008 to 20 July 2008. 11. The applicant’s Personnel Qualification Record, prepared 31 March 2010 shows the applicant’s physical profile as 111111 as of his physical examination conducted in April 2009. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 12. Orders 096-607 show the applicant was discharged from the Army National Guard and assigned to the Ready Reserve effective 6 April 2010. He was transferred to an Army Reserve unit effective 19 April 2010. 12. The applicant entered active duty on 21 June 2010 to attend the Transportation Management Coordinator course. He was released from active duty on 3 August 2010. 13. Orders 11-096-00054 show the applicant was reassigned to the Ready Reserve effective 4 May 2011. On 9 December 2011, he extended his enlistment for 6 months. Orders C-01-200428 show he was assigned to an Army Reserve unit effective 19 December 2011. 14. The applicant’s DA Forms 2166-8 (NCO Evaluation Report) for the periods covering 18 December 2011 to 17 December 2012, 18 December 2012 to 17 December 2013, and 18 December 2013 to 17 December 2014 show: * he passed his Army Physical Fitness Test (APFT) on 26 July 2012 * he failed his APFT on 16 November 2013; he failed the 2-mile run by one minute * he failed his APFT on 18 October 2014; he failed the 2-mile run with a time of 17:53 with an overall score of 174 15. Orders 15-187-00044 show the applicant was transferred to the Ready Reserve effective 5 August 2015 for personal reasons. 16. Orders D-04-608550 show the applicant was honorably discharge from the Army Reserve effective 12 April 2016. 17. A DD Form 215 was issued on 17 September 2021 adding the Purple Heart and Combat Action Badge. A NGB Form 22A (Correction to NGB Form 22) was issued on 11 November 2021 adding the Combat Action Badge. The applicant submitted a claim for Combat-Related Special Compensation (CRSC) on 30 August 2022. On 12 September 2022 he was notified his claim could not be processed because he was not in a retired status with a VA waiver in place. 18. The applicant provided: a. A VA civil service preference certificate stating the applicant has service- connected disability(ies) rated at 30 percent or more. b. A VA Rating Decision, dated 28 and 29 March 2023, shows he was service connected for the following conditions: * chronic fatigue syndrome, 100 percent effective 13 May 2022 * migraine headaches (previously rated as post-concussion headache syndrome), 30 percent, continued * bronchospastic disorder/bronchial asthma, 10 percent, continued * tinnitus, 10 percent, continued * bilateral hearing loss, 0 percent, continued d. 64 pages of medical records. 19. Based on the applicant's contention the Army Review Boards Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 20. 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. 21. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 22. 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. 23. MEDICAL REVIEW: a. 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, her previous ABCMR denial (AR20160018395, 17 May 2019), the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR is in essence requesting a referral to the Disability Evaluation System (DES). He states: “I was in the Nevada Army National Guard when I deployed to Iraq. I was there from 2006-2007. I was wounded in combat by an IED/EFP [improvised explosive device / explosively formed penetrator] roadside bomb. I received a mild Traumatic Brain Injury and a spinal cord injury. I received a Purple Heart and the Combat Action Badge. From the National Guard I transferred to the Army Reserve. From the Army Reserve I transferred to the Inactive Ready Reserve where I ETSed / mustered out of the service altogether. I didn't have the opportunity to formally out process prior to my ETS [expiration – term of service]. I did not have the opportunity to set myself up to be on the Permanent disabled List which would guarantee a Military Retirement and Combat Related Special Compensation. This was mostly due to my ignorance until recently. I am an Honorably Discharged Veteran. I served Honorably I didn't do anything that would put me in a position to where I am seeking an upgrade of dishonorable discharge or something similar as bad. I am currently at 90% VA rated disability and looking to increase to 100%.” c. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. His NGB Form 22 shows he entered the Army National Guard on 28 September 2005 and was honorably discharged from the Nevada Army National Guard (NVARNG) on 6 May 2010 under provisions in paragraph 6-36n of NGR 600-200, Enlisted Personnel Management (31 July 2009), Expiration of active status commitment in the Selected Reserve. Orders published by the 63rd Regional Support Command on 6 April 2011 show that per the applicant’s voluntary request, he was transferred from the 948th Transportation Company Detachment to the U.S. Army Reserve Control Group (Reinforcement) effective 4 May 2011. d. Supporting documentation shows the applicant sustained a mild traumatic brain injury due to an IED blast in July 2007. e. An August 2010 Service School Academic Evaluation Report (DA Form 1059) he successfully completed the six-week Transportation Management Coordinator Course with the comment on the form: “SPC [Applicant] completed the Transportation Management Coordinator course (88N10) in a commendable fashion. He is an outstanding student with much potential and continuously exhibited initiative and stamina. He displayed the desire to learn and seek self-improvement and would be an asset to any unit. I recommend him for further military education. Soldier was on active duty for training for this report period.” f. Review of the applicant’s records in MEDCHART found no permanent physical profiles and only one temporary non-duty limiting physical profile for decrease visual acuity. g. There is no probative evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his voluntary discharge. 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 voluntary discharge. h. 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. i. Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012) states: “The mere presence of an impairment does not, of itself, justify a finding of unfitness 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.” j. Paragraph E3.P3.5.1 of Department of Defense Instruction 1332.38 Subject: Physical Disability Evaluation (14 November 1996) states: “The DES compensates disabilities when they cause or contribute to career termination.” j. It is the opinion of the ARBA medical advisor that a referral of his case to the DES in not 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 Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review the Board concurred with the advising official finding that a referral of his case to the Disability Evaluation System (DES) is not warranted. The Board noted there is no probative evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his voluntary discharge. Additionally, the Board determined based on the advising official 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 voluntary discharge. The Board agreed, there is insufficient evidence to support the applicant’s contentions for a physical disability retirement. Therefore, relief was denied. 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. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, 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. 3. Title 38 USC, 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. 4. Title 38 USC, 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. 5. Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 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. 6. AR 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). 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. 7. Section 1556 of Title 10, USC, 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. 8. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 9. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007896 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1