IN THE CASE OF: BOARD DATE: 26 May 2023 DOCKET NUMBER: AR20220010367 APPLICANT REQUESTS: In effect, the Board grant him a medical retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 4700 (Medical Record – Supplemental Medical Data) * DA Form 2823 (Sworn Statement) * Department of Veterans Affairs (VA) printout * Diploma of Program Completion FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, he is ten times more likely to get colon cancer, due to his medical condition. a. The Army offered him a medical evaluation board (MEB), but he declined because of anxiety; at the time he was a drug addict, and he was self-isolating. He has since completed rehabilitation, and they gave him a completion award. b. In support of his claim, the applicant provides a copy of a DA Form 4700, indicating he underwent a colonoscopy, in or around January 2011; a sworn statement, in which he attests to the actions he took while deployed and during an indirect fire attack; a printout showing VA's combined 100 percent disability ratings for post- traumatic stress disorder (PTSD) and ulcerative colitis; and a certificate of completion for a recovery program. c. On his DD Form 149, the applicant indicates he received an honorable character of service and was discharged, on 26 December 2017. 3. A review of the applicant's service record reveals the following: a. On 23 December 2009, the applicant enlisted into the Army National Guard (ARNG) for 8 years. On 9 March 2010, the applicant entered initial active duty for training and, upon completion of initial entry training and the award of military occupational specialty 15P (Aviation Operations Specialist), orders honorably released him from active duty and returned him to his GAARNG unit. b. On 27 November 2010, orders mobilized the applicant in support of Operation Iraqi Freedom and transferred him to Fort Hood, TX. On 7 January 2011, medical authority at Fort Hood performed a colonoscopy on the applicant and found "moderately severe colitis." On 10 February 2011, the U.S. Army Human Resources Command (HRC) issued orders directing the applicant's retention on active duty, effective 10 February 2011. The purpose was for the applicant to participate in Reserve Component (RC) Warriors in Transition Medical Retention Processing and to undergo medical evaluation; the period of active duty was to be for 60 days, with an end date of 10 April 2011. c. At some point prior to 2 March 2011, the applicant completed his medical evaluation, and, on 2 March 2011, he deployed to Iraq. Effective 9 September 2011, the applicant's leadership promoted him to specialist (SPC)/E-4. On 16 November 2011, the applicant redeployed and, on 3 January 2012, orders honorably released him from active duty and returned him to the GAARNG. d. On 17 June 2015, the applicant extended his enlistment by 2 years, making his adjusted ARNG expiration term of service 22 December 2017. Starting in December 2015, the applicant failed to report for unit drills, and, by May 2016, he had accrued 10 unexcused absences within a one-year period. e. On 18 May 2016, the applicant's commander advised him, via memorandum, that he was initiating separation action against the applicant, based on the accumulation of 10 unexcused absences from unit training; the commander stated he would be recommending the applicant for a general discharge under honorable conditions. f. National Guard Bureau Form 22 (National Guard Report of Separation and Record of Service) shows that, on 24 May 2016, the ARNG separated the applicant with a general discharge under honorable conditions due to unsatisfactory participation; the form additionally states the applicant completed 6 years, 5 months, and 2 days of GAARNG service, and that the ARNG transferred him to the U.S. Army Reserve (USAR) to complete his military service obligation. g. Effective 26 December 2017, HRC orders honorably discharged the applicant from the USAR. 4. The applicant requests the Board to medically retire him. a. AR 40-400 (Patient Administration), in effect at the time, stated the following: (1) Paragraph 7-1 (General). When physicians identified Soldiers with medical conditions that did not meet the medical retention standards outlined in AR 40-501 (Standards of Medical Fitness), they were to initiate DA Forms 3349 (Physical Profile) and refer the Soldiers to an MEB; the MEB's purpose was to document the Soldier’s medical status and his/her duty limitations, insofar as the limitations affected his/her duty performance. (2) Paragraph 7-5 (Use of MEBs). Situations that required MEB consideration included the following: * RC Soldiers on authorized duty whose fitness for further military service was questionable upon completion of hospitalization * RC personnel who required further hospitalization that extended beyond the termination of their tour of duty * RC members not on active duty who required evaluation due to a medical condition(s) that could render them unfit for further military service b. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, stated: (1) Chapter 3 stated the mere presence of an impairment did not, of itself, justify a finding of unfitness due to physical disability. In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. (2) Appendix E (Personnel Processing Actions) stated, while enlisted Soldiers discharged for physical disability normally received an honorable character of service, a general discharge under honorable conditions was also authorized for those Soldiers whose service had been satisfactory, but not sufficiently meritorious to warrant an honorable characterization. c. First initiated in 2008 as a joint Department of Defense (DOD) and VA pilot program, DOD fully implemented the Integrated Disability Evaluation System (IDES) in December 2011; it currently operates under DOD Manual (DODM) 1332.18, Volume 1 (DES Manual: Processes), and its purpose is to establish the procedures by which the fitness/unfitness of Soldiers who have been wounded, ill, or injured is determined. Per Section 3: IDES Process, the following occur: (1) The VA conducts medical evaluations (referred to as Compensation and Pension examinations) of the Soldier's disabling conditions. Then, based on the results of VA's medical examinations, an MEB convenes to determine which medical conditions fail medical retention standards, per AR 40-501. All failing conditions are referred to a PEB for a fitness determination. (2) The PEB reviews the failing medical conditions, and those found by the PEB to be unfitting are sent to the VA for a disability rating. In determining the rating(s) to be assigned, the VA uses the VA Schedule for Rating Disabilities (VASRD). (3) Upon receipt of the disability rating(s) from the VA, the PEB finalizes the results and provides the disposition; such disposition can include: (a) Return to duty. (b) Separate with severance pay, when the combined disability rating was 20 percent or less, the condition(s) were incurred in the line of duty and did not exist prior to the Soldier's entry on active duty (EPTS). (c) Separate without severance pay when the medical condition was EPTS. (d) Combined ratings of 30 percent or more: * When the PEB could not confirm the permanency of a disabling condition, it recommended the Soldier for the Temporary Disability Retired List * Conditions not likely to change over time resulted in placement on the Permanent Disability Retired List 5. The applicant provides evidence the VA has rated him as 100 percent disabled. a. The VA and the Army operate under separate provisions of Federal law (Title 38 (Veterans' Benefits) and Title 10, respectively). As such, each makes independent determinations by applying the policies and mandates set forth within their respective parts of the law. Decisions made by the VA regarding a Soldier's service- connected disabilities are not binding on the Army, and do not reflect that the Army's determinations were wrong. b. The Army rates only conditions determined by the Army's Disability Evaluation System to be physically unfitting; to have resulted from or were aggravated by the Soldier's military service; and which disqualified the Soldier from further military service. Conditions incurred prior to the Soldier's entry on active duty are not compensable and are not rated. (1) The benefits associated with the Army's disability rating are intended to compensate the individual for the loss of a military career. (2) By contrast, the VA awards disability ratings to Veterans for service- connected conditions, including those conditions detected after discharge; the VA's focus is on compensating the individual for the loss of civilian employability and can be continually adjusted when supported by subsequent medical evaluations. 6. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). In effect, the applicant desires medical discharge. He has stated that he is ten times more likely to get colon cancer and was offered a MEB but declined it due to anxiety. He also indicated that PTSD, and past history of drug addiction were related to his request. b. The applicant’s military record was summarized in the ABCMR ROP. Of note his first period of active service was from 20100309 to 20100730. He completed two other periods of active service from 20101127 to 20110217 and 20110210 to 20110410. He deployed twice to Iraq from 2010 to 2011. c. VA records showed that the applicant was 100% service connected for Ulcerative Colitis effective 16May2016. * The 07Jan2011 Sigmoidoscopy Procedure Report showed moderately severe colitis in the colon. He had been slated to deploy but was flagged at SRP due to bloody stool. He was placed on a temporary P3 profile and was entered into WTU for further evaluation 10Feb2011. He did well on Mesalamine a nonsteroidal anti-inflammatory (no special storage requirements) and was declared Fit for Duty by gastroenterology on 11Feb2011. He was deemed to meet retention standards or AR 40-501 chapter 3. He successfully deployed and in his 16Feb2011 Post Deployment Health Assessment (PDHA 27Oct2010 to 24Feb2011), he rated his health as “excellent”. He did not endorse any sick call visits for diarrhea, indigestion, or heartburn. In the 17Nov2011 PDHA (03Mar2011 to 04Nov2011), he endorsed “good” health. He endorsed having gone to sick call and been on quarters for diarrhea. * After discharge from active service, he had at least 2 flares of Ulcerative Colitis before he was discharged from service in 2016: In October 2013 he was reportedly treated at an outside facility (28Jan2014 Primary Care Initial Evaluation Note), and in August 2014 (07Oct2014 Gastroenterology Consult). * 27Jan2016 Gastroenterology Fellow Note. The applicant had been out of his Mesalamine prescription since August 2015 and had not experienced any episodes of what he considered to be a flare of his condition. He was having 2 BMs daily, with mucus present, but no bleeding. His weight was stable. d. VA records showed that the applicant was 100% service connected for PTSD effective 29Jun2016. * In his 16Feb2011 Post Deployment Health Assessment, the applicant did not endorse any exposure to dead bodies or seeing people killed or wounded. He was not involved in direct combat. He denied exposure to blasts/explosions accidents and other trauma. He denied BH symptoms. * In the 17Nov2011 PDHA (03Mar2011 to 04Nov2011), he endorsed having emotional problems that made it somewhat difficult to do his work. He also endorsed being injured during the deployment, exposure to blasts/explosions accidents, and other trauma. He denied BH concerns. During the 31Mar2012 Post Deployment Health Reassessment, he endorsed trouble concentrating, difficulty making decisions, and he endorsed feeling anxious and depressed. * 02Jan2013 Mental Health Initial Evaluation Note. The applicant sought substance abuse treatment because his parents were concerned. During this visit, he reported exposure to a motor attack in Iraq in 2011. He endorsed having depression for about 1 year (same length of time as using). He also endorsed feelings of worthlessness/guilt and hopelessness and transient auditory hallucinations (thought to be substance induced at the time). He began cannabis use as a teen, methamphetamine use in 2008, and alcohol use starting at age 21. He denied childhood abuse. Family history of mental health illness was unknown. He last worked while in active service and was currently receiving unemployment benefits and living with his parents. * On 07Feb2013, he began an 11 day psychiatric admission to Hospital for paranoia, and he appeared to be responding to internal stimuli. Diagnostic Impression: Methamphetamine Dependence, Substance-induced Psychotic Disorder (SIPD) vs. Psychosis Disorder Not Otherwise Specified. * In the 24Apr2013 MH Note the applicant described a sentinel event: In 2011 in Iraq, his unit was attacked while they were sleeping, and a fire fight ensued. He thinks an IED landed within 100 meters from where he had been sleeping. * 03Feb2014 MH Initial Eval Note. He endorsed occasional use of methamphetamine to self-medicate or to improve focus. Diagnoses (based on criteria from DSM 5): Methamphetamine Use Disorder; PTSD, Chronic; and Unspecified Depression rule out Substance Induced Mood Disorder (SIMD). * 05May2014 MH Note. Diagnoses: Methamphetamine Use Disorder (rule out Continuous Use); Alcohol Use Disorder; rule out SIMD vs SIPD vs Bipolar Disorder vs. Schizoaffective Disorder; rule out PTSD. * 28Apr2015 MH Note. He reported having been hospitalized for 3 days in March 2015 for expressing suicide intent. He reported racing thoughts, distractibility, promiscuous behavior, overspending and visual hallucinations. He also reported auditory hallucinations while in the kitchen at drill: He heard a growling sound. e. After his release from active duty in January 2012, the applicant had multiple emergency room visits and psychiatric admissions while still in the Reserves. Psychosis symptoms were frequently observed. Initially his episodes of psychoses were viewed as substance induced; however, in 2020 he was diagnosed with Schizophrenia after several more psychiatric admissions. According to case management notes, Command was encouraged to send the applicant for Fitness for Duty Evaluation due to the severity of his symptoms; however, Command preferred to encourage him to seek treatment at that point (26Feb2015 Chronological Record of Medical Care). In May 2016, the applicant was recommended to be separated under provisions of AR 135-178, chapter 13, para 13-1 for multiple instances of unexcused absences from unit training assembly from December 2015 through May 2016. Although there was no profile information for the applicant’s BH condition in the record; in the ARBA Medical Reviewer’s opinion, the applicant’s BH condition which includes combat associated PTSD and Schizophrenia diagnoses, failed medical retention standards of AR 40-501 chapter 3. Recommend referral for medical discharge processing for his BH condition. In contrast, available records were insufficient to support that the Ulcerative Colitis condition failed medical retention standards of AR 40- 501 chapter 3 while he was in the military. 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 applicant’s contentions, the military record, a medical advisory opinion, and regulatory guidance were carefully considered. One possible outcome was to provide relief based upon the advisory official’s recommendation to refer for medical discharge processing for his BH condition. However, the Board majority concurred with the advisory official’s second finding which indicated available records were insufficient to support that the Ulcerative Colitis condition failed medical retention standards of AR 40-501 chapter 3 while he was in the military. Based upon a preponderance of the evidence, and notwithstanding the recommendation of the advisory official, the Board determined there is insufficient evidence that shows a medical retirement was warranted during his period of active service. 2. The Board agreed that the VA provides post-service support and benefits for service connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service connected disabilities. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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, USC, 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, United State Code, section 1556 (Ex Parte Communications Prohibited) provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. AR 40-400, in effect at the time, stated a. Paragraph 7-1 (General). Physicians who identify Soldiers with medical conditions who may not meet fitness standards for retention, as outlined in AR 40-501 (Standards of Medical Fitness) will initiate a DA Form 3349 (Physical Profile) referring them into the Army's Disability Evaluation System (DES). If the Soldier does not meet retention standards, an MEB is mandator; MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the member’s medical status. b. Paragraph 7-5 (Use of MEBs). Situations that require MEB consideration include the following: * RC Soldiers on authorized duty whose fitness for further military service upon completion of hospitalization is questionable * RC personnel who will require hospitalization beyond the termination of their tour of duty * RC members not on active duty who require evaluation due to a medical condition that may render them as unfit for further military service 4. AR 635-40, in effect at the time, stated: a. Chapter 3 stated the mere presence of an impairment did not, of itself, justify a finding of unfitness due to physical disability. In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. b. Appendix E (Personnel Processing Actions) stated, while enlisted Soldiers discharged for physical disability normally received an honorable character of service, a general discharge under honorable conditions was also authorized for those Soldiers whose service had been satisfactory, but not sufficiently meritorious to warrant an honorable characterization. 5. First initiated in 2008 as a joint Department of Defense (DOD) and VA pilot program, DOD fully implemented the Integrated Disability Evaluation System (IDES) in December 2011; it currently operates under DOD Manual (DODM) 1332.18, Volume 1 (DES Manual: Processes), and its purpose is to establish the procedures by which the fitness/unfitness of Soldiers who have been wounded, ill, or injured is determined. Per Section 3: IDES Process, the following occur: a. The VA conducts medical evaluations (referred to as Compensation and Pension examinations) of the Soldier's disabling conditions. Then, based on the results of VA's medical examinations, an MEB convenes to determine which medical conditions fail medical retention standards, per AR 40-501. All failing conditions are referred to a PEB for a fitness determination. b. The PEB reviews the failing medical conditions, and those found by the PEB to be unfitting are sent to the VA for a disability rating. In determining the rating(s) to be assigned, the VA uses the VA Schedule for Rating Disabilities (VASRD). c. Upon receipt of the disability rating(s) from the VA, the PEB finalizes the results and provides the disposition; such disposition can include: (1) Return to duty. (2) Separate with severance pay, when the combined disability rating was 20 percent or less, the condition(s) were incurred in the line of duty and did not exist prior to the Soldier's entry on active duty (EPTS). (3) Separate without severance pay when the medical condition was EPTS. (4) Combined ratings of 30 percent or more: * When the PEB could not confirm the permanency of a disabling condition, it recommended the Soldier for the Temporary Disability Retired List * Conditions not likely to change over time resulted in placement on the Permanent Disability Retired List //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010367 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1