IN THE CASE OF: BOARD DATE: 11 August 2023 DOCKET NUMBER: AR20220009112 APPLICANT REQUESTS: retirement due to physical disability. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) and MEB Narrative Summary (NARSUM) * Department of Veterans Affairs (VA) Compensation and Pension (C&P) Examinations * numerous military medical records * two third-party statements 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 a. His discharge should be classified as medical retirement. He went through the medical board process but due to a civil court case, his commander did not retain him. The medical board found him fit for duty, however, based on all his medical records, he should have been found unfit for duty. He suffered a traumatic brain injury (TBI) due to a blast and he also was diagnosed with narcolepsy, adjustment disorder, and other medical conditions, making it very difficult to continue to function at the same level as he did prior to his TBI. b. He is receiving service-connected disability compensation from the VA rated at 90%. He served his country faithfully. He was good at his job but after his TBI, his medical conditions affected his ability to perform his job at the same standard. He would like his records to be reviewed again without the prejudice of his civil court case. 3. The applicant enlisted in the Regular Army on 1 April 2008 for a period of six years and training in military occupational specialty (MOS) 68K (Medical Laboratory Specialist). He served in Iraq from 23 March 2010 to 11 March 2011. 4. The applicant's MEB NARSUM and MEB proceedings show he was referred to an MEB for narcolepsy and cataplexy. The MEB NARSUM shows: a. His medical records were reviewed by the MEB on 23 July 2013. Determinations were made by review of his Armed Forces Health Longitudinal Technology Application (AHLTA) notes from 4 April 2008 to 17 July 2013, VA C&P examinations (general, psychiatric, TBI, audiology, dental, neuropsychological), and consultant reports and reports of ancillary testing. All supporting documents were reviewed. b. Per a DA Form 7652 (Disability Evaluation System (DES) Commander's Performance and Functional Statement), his commander recommended his separation from the Army. The applicant was pending action under the Uniform Code of Military Justice based on a domestic violence charge pending against him. The applicant did his job to standard and during the duty day his unit had no issues with his performance. c. He was diagnosed with the following conditions, which did not fall below medical retention standards per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. * narcolepsy with cataplexy * sleep apnea with narcolepsy and cataplexy * adjustment disorder with anxious mood, chronic * strain, bilateral knees * strain, cervical spine * degenerative disc disease with retrolisthesis, lumbar spine * degenerative arthritis of the left shoulder joints * TMJ disorder and bruxism * tension headache secondary to TMJ condition, not prostrating * post-traumatic headache related to rocket blast exposure in 2010, not prostrating * chronic cough associated with postnasal drip * strain, quiescent, bilateral ankles * subjective tinnitus * history of mild TBI with subjective residuals of post-traumatic headaches and tinnitus * bilateral sacroiliitis * status post right great toe fracture * bilateral plantar fasciitis d. Medical retention determination point (MRDP) statement: The Soldier has undergone extensive evaluation and treatment including medical management and specialty care. The Soldier is beyond one year from being diagnosed with hypersomnia or narcolepsy, the condition is controlled with medication, and it appears to meet standards per Army Regulation 40-501, paragraphs 3-30h and 3-41e(1). e. Per the applicant's DA Form 3349 (Physical Profile) no Army Physical Fitness Test run due to chronic left knee strain; running at own pace and distance. f. Condition(s) that do not meet medical retention standards: None. g. Disposition: The Service Member is returned to full duty with the aforementioned restrictions. 5. The applicant's Enlisted Record Brief shows his last physical exam was on 13 June 2013 and that he was assigned a physical profile serial system (PULHES) code of "112111" and a medical readiness classification (MRC) code of 1. 6. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 31 March 2014 by reason of completion of required active service. 7. The applicant provided two third-party statements, authored by a family's friend and his mother respectively, expressing their support for the applicant's medical retirement based on his behavioral changes as a result of his military service. The complete statements were provided to the Board for their review and consideration. 8. 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. 9. 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. 10. Title 38, Code of Federal Regulations, Part IV is the VA 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. 11. 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, the military electronic medical record (EMR) (AHLTA and/or MHS Genesis), 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: b. The applicant has applied to the ABCMR requesting a referral to the Disability Evaluation System (DES). He states: “My discharge should be classified as medical retirement. I went thru the medical board process but due to a civil court case, my commander did not retain me. The medical board found me fit for duty though if you look at all medical records, I really should have been found unfit for duty. I have a TBI due to a blast injury, narcolepsy, adjustment disorder, and other medical conditions making it very difficult to continue to function at the same level as I did prior to my blast injury. Thru the VA, it was determined for me to receive 90 percent disability. I service my country faithfully. I was good at my job but after my blast injury, my medical conditions affected my ability to perform my job at the same standard. I would like my records to be reviewed again without the prejudice of my civil court case. I was not well informed. I felt pressured to sign documents that I disagreed with. I was not advised well thru the medical board process. They kept throwing the fact that there was court a case pending that had nothing to do with my medical conditions. I also had multiple people questioning my medical injuries and thought I was trying to defraud the government and they showed extreme prejudice towards me due to my civil court case.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows the former Medical Laboratory Specialist (68K) entered the regular Army on 1 April 2008 and was honorably discharged on 31 March 2014 at the completion of his required active service under authority provided in chapter 4 of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009). Is shows he served in Iraq from 23 March 2010 thru 11 March 2011. He was not awarded a combat action badge. d. The records, submitted and electronic, are incomplete. e. They show that in 2013, the applicant was referred to a medical evaluation board (MEB) for “narcolepsy and cataplexy.” He appears to have claimed approximately 16 additional medical conditions. On 23 July 2013, the MEB found all seventeen medical conditions to meet medical retention standards, including “Narcolepsy with cataplexy,” “Sleep apnea with narcolepsy and cataplexy,” and Adjustment disorder with anxious mood, chronic.” f. From the MEB narrative summary for these three conditions: “VA Diagnosis: Narcolepsy with cataplexy. The service member began receiving mental health treatment in early 2009 related to marital stressors. He was diagnosed with bipolar disorder NOS later that year and prescribed mood stabilizers. However, he discontinued these due to drowsiness. In mid-2011, he began to complain of frequent nocturnal awakening and daytime sleepiness. In 2012 he was noted to have a high Epworth score and was referred for sleep study and MSLT [multiple sleep latency test], which showed very mild obstructive sleep apnea and low sleep latency consistent with organic hypersomnia. He was diagnosed with upper airway resistance syndrome and prescribed AutoPAP but discontinued it due to claustrophobia. He was prescribed Provigil in July 2012 with significant improvement in daytime sleepiness. However, refill records indicate that the prescription has not been filled consistently. He was diagnosed with narcolepsy and cataplexy in April 2013 based on history of transient weakness associated with laughing. The neurology note on 19 April 2013 stated: " ... symptoms now reported by patient are consistent with cataplexy. At this time the cataplexy is mild and not interfering with function, will simply monitor; and his symptoms of hypersomnia are well controlled with Provigil. Continue current treatment with body positioning therapy for UARS and Provigil for hypersomnia. Monitor cataplexy ... " There is no record that the SM was given a profile for this condition prior to referral to the MEB in May 2013. The service member is taking Provigil inconsistently for this condition. There is no history of incapacitation or hospitalization for this condition. The service member reported to the VA examiner that this condition affects his ability to work as follows: "The soldier says he can fall asleep easily a work if he has down time, like waiting for someone else to arrive. He does not have full sleep attacks at work. He feels the cataplexy makes manual dexterity difficult when it occurs." However, the Commander's Statement does not indicate that this condition affects the performance of the Soldier's MOS duties and review of the medical record confirms that. VA Diagnosis: Sleep apnea with narcolepsy and cataplexy. See the history for narcolepsy above. There is no record that the SM has been given a profile for sleep apnea. The service member is on no treatment for this condition. There is no history of surgery, incapacitation, or hospitalization for this condition. The Commander's statement does not indicate that this condition affects the performance of the Soldier's MOS duties and review of the medical record confirms that. VA Diagnosis: Adjustment disorder with anxious mood, chronic. See history for narcolepsy above. The service member was given a 90-day temporary profile related to medication changes for this condition in February 2013. The service member has most recently been prescribed Celexa but the prescription has expired. He has previously been given clonazepam, quetiapine, and Trileptal for this condition. There is no history of incapacitation or hospitalization for this condition. The Commander's statement does not indicate that this condition affects the performance of the Soldier's MOS [military occupational specialty] duties and review of the medical record confirms that. The VA examiner reported: "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 continuous medication ... The Adjustment Disorder has had minimal impact on his work performance." The claim for depression was subsumed under this diagnosis.” g. From Commander’s Statement and Functional Status (DA Form 7652) dated 31 May 2013: "I do not recommend retaining this Soldier: This Service Member is pending UCMJ that is not a result of his MEB -- He has a domestic violence charge pending against him ... Service member does his job to standard and during the duty day we have no issues with his performance." h. The applicant’s MEB determined all his conditions met medical retention standards, and there is no indication 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. i. No documentation addressing the “domestic violence charge” or his “civil case” was submitted with the application nor uploaded into iPERMS. One could surmise that given the findings of the MEB and pending charge and/or civil case, a decision was made which allowed the applicant to complete his term of service and separate with an honorable characterization of service but with a reentry code of 3. j. There is no evidence the applicant had any duty incurred medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. k. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings, including sleep apnea (50%) and anxiety disorder (30%). However, the DES only compensates an individual 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. l. It is the opinion of the ARBA medical advisor that a referral of his case to the DES is 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 contentions, military record, and regulatory guidance. The Board noted the Medical Evaluation Board’s determination that the applicant met medical retention standards and that there was no indication of any medical condition that prevented him from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. Although the Board is cognizant of the applicant’s Department of Veteran Affairs disability rating, the Army and VA disability rating processes serve two different purposes and operate under different authorities, thus ratings vary. Based on the preponderance of the documentation available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief by referral to the Disability Evaluation System. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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, 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 Department of Defense Directive 1332.18 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). 3. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 lists the various disqualifying medical conditions and/or physical defects which may render a Soldier unfit for further military service and which fall below the standards required. These medical conditions and/or physical defects, individually or in combination, are those that have met the clinical or administrative MRDP and: a. Significantly limit or interfere with the Soldier’s performance of their duties (either basic Soldier skills or MOS specific) as substantiated by the Soldier’s commander or supervisor. b. Require medication for control that requires frequent monitoring by a physician due to debilitating or serious side effects, medical care, or hospitalization with such frequency as to interfere with the satisfactory performance of duty. c. Restrict performance of any of the profile functional activities listed in the DA Form 3349; prevent the performance of all aerobic events of the APFT; have met a clinical MRDP; or have been temporarily profiled for more than 365 days, meeting the administrative MRDP. d. May compromise or aggravate the Soldier’s health or well-being if they were to remain in the military Service. This may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring. e. May compromise the health or well-being of other Soldiers (for example, a carrier of communicable disease who poses a health threat to others). f. May prejudice the best interests of the U.S. Government if the individual were to remain in the military Service. 4. Army Regulation 40-501 also provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 5. Army Regulation 635-40 establishes the DES 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 or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. The regulation in effect at the time, dated 8 February 2006 (revised in March 2012), states in: a. Paragraph 3-1: (1) The mere presences 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. (2) To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in AR 40–501, chapter 3. These standards include guidelines for applying them to fitness decisions in individual cases. These guidelines are used to refer Soldiers to an MEB. The major objective of these standards is to achieve uniform disposition of cases arising under the law. These retention standards and guidelines should not be interpreted to mean that possessing one or more of the listed conditions or physical defects signifies automatic disability retirement or separation from the Army. The fact that the Soldier has one or more defects sufficient to require referral for evaluation, or that these defects may be unfitting for Soldiers in a different office, grade, rank, or rating, does not justify a decision of physical unfitness. (3) The overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered. The effect will be considered both from the standpoint of how the disabilities affect the Soldier’s performance and the requirements imposed on the Army to maintain and protect him or her during future duty assignments. A Soldier may be unfit because of physical disability caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them, alone, would not cause unfitness. b. Paragraph 3-2: (1) Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. (2) When a Soldier is being processed for separation or retirement for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement, creates a presumption that the Soldier is fit. 6. DA Pamphlet 40-502 (Medical Readiness Procedures) describes the processes and procedures for assessing, documenting, reporting, and administering medical readiness. a. Paragraph 1-6 (MRC), states healthcare providers determine medical readiness. The MRC 1 is assigned to fully medically ready Soldiers without any deployment-limiting medical conditions or medications. This class includes Soldiers with temporary profiles up to 7 days in length. b. Paragraph 4-3 (Physical Profile Serial System) states the basis for the physical profile serial system is the function of body systems and their relation to military duties. Profiling providers will use permanent profiles to describe and rate the function of the extremities, sensory organs, physical capacity, and mental health. The permanent physical profile has six functional areas “P–U–L–H–E–S” with four numerical designations used to reflect different levels of functional capacity. The determination of the numerical designation 1, 2, 3, or 4 evaluates the functional capacity of a particular organ or system of the body. The functional areas for consideration are: P – physical capacity or stamina, U – upper extremities, L– lower extremities, H – hearing and ears, E – eyes, S – psychiatric. An individual having a numerical designation of “1” describes a high level of medical fitness, deployable. A physical profile designator of “2” under any factors indicates some medical condition or physical defect that requires some minor functional or activity limitations, deployable. 7. Section 1556 of Title 10, United States 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) 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 ABCMR 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) AR20220009112 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1