IN THE CASE OF: BOARD DATE: 28 June 2023 DOCKET NUMBER: AR20220010628 APPLICANT REQUESTS: in effect, * physical disability separation or retirement * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Record of Military Processing-Armed Forces of the United States * Legal Brief * DA Form 2173 (Statement of Medical Examination and Duty Status) * Memorandum, Informal Line of Duty (LOD) Review * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Court Decree for Change of Name 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 discharged due to a condition not a disability when he should have received a medical discharge with full benefits. He injured his knee on active duty and was not given a disability. He is requesting his records be corrected to show he received a medical discharge and compensation for his service-connected injury. 3. The applicant and counsel provided: a. A Legal Brief stating the applicant was unjustly and erroneously separated from the U.S. Army Reserve (USAR) for a condition not a disability with uncharacterized service. The applicant was seriously injured during military service. The applicant should have been evaluated and found unfit for duty. All administrative remedies under existing law and regulation have been exhausted. The applicant wishes for his petition to be reviewed in the interest of equity, fairness, and justice, and the requested relief be granted. (1) The applicant’s counsel states the applicant is appealing to the ABCMR for a medical retirement. The appeal is based on three errors: (1) the underlying basis of his separation was procedurally defective; (2) the adverse action, to include the administrative discharge was unfair at the time; and (3) his discharge is inequitable. Counsel respectfully requests the applicant be assessed for a medical retirement, temporary disability retirement, or military retirement. (2) Equity considerations include an evaluation of matters such as age, educational level, aptitude scores, and whether the individual met normal military standards of acceptable behavior. Impropriety may be found when a prejudicial error of fact, law, procedure, or discretion occurred. Impropriety may be found if an expressly retroactive and favorable change in law or policy has been made. (3) In addition, under the guidance of the former Secretary of Defense, (Hagel Memorandum), the Board has extensive directives related to post traumatic stress disorder (PTSD) and traumatic brain injury (TBI). These issues should be granted liberal considerations before the Boards, especially when they are service connected. On 3 September 2014, the Secretary of Defense issued a memorandum providing guidance to the Board for Correction of Navy Records (Secretary Hagel’s Memorandum) considers petitions brought by veterans claiming PTSD with other than honorable conditions discharge. This includes a comprehensive review of all materials and evidence provided by the applicant. A memorandum providing further clarifying guidance was issued on 25 August 2017, by the Undersecretary of Defense for Personnel and Readiness. This policy guidance is intended to ease the application process for veterans who are seeking redress and assists the Board in consistent results in these cases. The guidance also mandates liberal waivers of time limits, ensures timely consideration of petitions, and allows for increased involvement of medical personnel in Board determinations. (4) The applicant joined the Army hoping to be stationed in Korea. Before joining the Army, he was not physically limited in his ability to work. He saw a recruiter in Boston and signed his contract. He went to basic training at Fort Jackson SC. During his training, on one of the marches with his duffle bag, he fell and injured his knee. He was unable to continue running or marching as he could not keep the pace with the other Soldiers. (5) He saw a doctor three times for his knee injury. The doctor sent paperwork stating that he could not physically participate in physical training any longer due to his knee injury. (6) When he was discharged, he did not realize the Army did not mention his physical injury that occurred during basic training. He is unable to receive compensation for his injury and wants to have his discharge reevaluated and receive a proper discharge with appropriate compensation. (7) There is a procedural defect in this case. The request for administrative separation can be both command-initiated and initiated by the servicemember. In this case, there was a hasty command-initiated request for separation when the applicant should have been properly diagnosed with a service-connected injury. In this case there was a rush to judgment. (8) He was never referred to the Medical Evaluation Board (MEB) or the Physical Evaluation Board (PEB). When a Soldier is injured, the command is required to initiate a line of duty investigation regardless of the Soldiers status at the time of the injury. This investigation should have been initiated within 7 days of the command becoming aware of the injury. In this case the severity of his injury would have required a finding of unfit whether in the LOD or not. The command did not properly initiate a MEB to determine his fitness for duty. Instead, they ignored the underlying medical condition and caused further injury, depression, and anxiety, due to their inaction and negligence. (9) The medical record in this case needs to be assessed and reviewed. Although the command was authorized to administratively separate the applicant, the fundamental reason for the discharge was substantially deficient. He should have been referred to an MEB/PEB and considered for the temporary disability retirement list or considered for a military retirement. The command did not have the authority to administratively separate him in this manner. b. A DA Form 2173 shows on 26 March 2009, at Moncrief Army Community Hospital, Fort Jackson, SC, the applicant was evaluated for congenital deformity [of the] lower limb. The disability was determined to be permanent. This document shows in: (1) Item 15 (Details of Accident or History of Disease): On 26 March 2009 while attending basic combat training at Ft. Jackson, SC, he re-injured a previous birth injury when he fell while marching. He received a medical waiver for enlistment. (2) Item 23 (Hour and Date of Training): 10 February 2009 to 15 May 2009. (3) Item 30 (Details of Accident – Remarks): He complained of the injury mentioned in the comments above from the moment he arrived at the unit on 24 March 2009. He claimed he could not march or run due to the injury. As a result, “he has not participated in any unit foot marches, marching, or physical training to date. Soldier has been grouped with other Soldiers on profile for all major training events, including physical training, since the Soldier began receiving medical attention on 26 March 2009.” (4) Item 31 (Formal Line of Duty Investigation Required): “NO” (5) Item 32 (Injury is Considered to Have Been Incurred in Line of Duty): “YES” c. Memorandum, subject: Informal (LOD), Applicant’s Name, dated 6 April 2009, showing his LOD was reviewed for completeness, and was determined to be in LOD. d. Court Decree for Change of Name, dated 5 March 2009, from the First Judicial District of Pennsylvania ordering the applicant’s name change to “MJC.” 4. In preparation for enlistment in the USAR, a DA Form 2808 (Report of Medical Examination), dated 4 October 2008, was prepared showing in: a. Item 34 (Lower Extremity) “abnormal,” significant muscular atrophy, not able to walk on heels or stand from a kneeling position. b. Item 35 (Foot) is marked to show “abnormal.” c. Item 36 (Feet) shows pes planus, mild. d. Item 74 (Examinee/Applicant): “Is not qualified for service.” e. Item 86 (Waiver Granted): “4 October 2008.” 5. On 4 October 2008, the applicant enlisted in the USAR for a period of 8 years in pay grade E-4. 6. A Chronological Record of Medical Care, dated 26 March 2009, shows the applicant was evaluated at the 20th Medical Group Clinic for joint pain, localized in the knee. He was prescribed Ibuprofen (200MG) and was released with work/duty/limitations. He was instructed to make an appointment with Doctor to start chapter 5-17 processing, on 30 March 2009, due to inability to do training exercises. “Discussed: Diagnosis, Medication(s)/Treatment(s), Alternatives, Potential Side Effects [with the] Patient who indicated understanding.” 7. Memorandum for Record, from Headquarters, U.S. Army Medical Department Activity, Fort Jackson, SC, dated 31 March 2009, stating the applicant received a waiver for enlistment. He had congenital deformity of the lower extremity. Since he started basic training, he had a hard time running and marching because of the muscle atrophy of his right leg. He was seen by orthopedics who recommended the applicant’s chain of command discharge him under chapter 5-17, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He would need an LOD. 8. A Memorandum for Commander, USABCT Company E, Fort Jackson, SC, dated 6 April 2009, subject: Informal LOD, shows the applicant’s Informal LOD was reviewed. It states: “Reviewed for completeness,” “In the LOD.” 9. On 14 May 2009, he was discharged from active duty. His DD Form 214 shows he was separated under AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 5-17, due to a condition, not a disability, with uncharacterized service. He completed 2 months and 21 days of net active service during this period. 10. 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. 11. 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. 12. 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. 13. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting, in essence, a referral to the Disability Evaluation System (DES). He states: “The applicant was injured on active duty and should have been given a medical discharge. He injured his knee and was not given a service-connected disability. He is requesting that he be compensated for that service-connected injury.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The DD 214 for the period of Service under consideration shows he entered the regular Army on 24 February 2009 and received an uncharacterized discharge on 14 May 2009 under the separation authority provided by paragraph 5-17 of AR 635-200, Active Duty Enlisted Administrative Separations (6 June 2005): Other designated physical or mental conditions. His separation code LFV denotes “Condition, Not A Disability.” Paragraph 5-17a of AR 635-200: Commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to— (1) Chronic airsickness. (2) Chronic seasickness. (3) Enuresis. (4) Sleepwalking. (5) Dyslexia. (6) Severe nightmares. (7) Claustrophobia. (8) Other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the soldier’s ability to effectively perform military duties is significantly impaired. c. The applicant’s pre-entrance Report of Medical History shows the applicant was found to have marked atrophy of the right lower extremity and was unable to walk on his heels on the right side, unable to stand from a kneeling position, and could not fully rotate the right foot at the ankle joint. The applicant informed the examiner the condition had been present since birth. He applied for and was granted a medical waiver to enlist in the Army. d. Based upon a referral from his company commander, the applicant was seen by his primary care manager on 17 March 2009: “Soldier sent in for eval by his commander - request full evaluation. Commander’s Memo states ".......has trouble marching, running, walking, etc. due to condition of his right leg." When I ask this soldier what kind of problems he is having he says that his only problem is that he can't do a "right face" movement because he cannot pivot properly on right heel. He denies problems with marching, walking, or running. States he completed 2 mile run with unit yesterday without problem. He does have a waiver from MEPS and previous ortho for congenital atrophy right lower extremity and decreased dorsiflex of right ankle. Usually when there is a waiver and soldier cannot perform to military standards the soldier's COC [chain of command] initiates a 5-17 separation action. I will ask our orthopedic department to review this case and make recommendations.” e. The applicant’s evaluation by orthopedics on 19 March 2009 resulted in documentation of multiple abnormalities and the subsequent the recommendation he be separated under paragraph 5-17 of AR 635-200. Radiographs of the right leg and ankle revealed “Extensive Monckeberg type calcification in the arteries of the distal leg, ankle, and foot. Further metabolic investigation recommended. No significant bony abnormalities.” f. The applicant was recommended for separation on 31 March 2009: “PVT “[Applicant] received waiver for enlistment. PVT [Applicant] has congenital deformity lower extremity. Since he started basic training, he has a hard time running and marching because of the muscle atrophy right leg. Patient was seen by orthopedic who recommended Chapter 5 – 17.” g. It is the opinion of the ARBA Medical Advisor that a referral of his case to the Disability Evaluation System is not warranted BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. The Board noted the applicant received a medical waiver for enlistment for congenital deformity lower extremity, notified the medical examiner the condition had been present since birth, and had a hard time running and marching because of the muscle atrophy right leg. 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 advisory official finding the applicant was subsequently and appropriately recommended for separation under paragraph 5-17 of AR 635-200 because he was unable to perform to military standards due to a preexisting condition. The applicant is advised the DD Form 214 shows circumstances as they were on the date prepared. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows a physical disability separation or retirement was warranted during his period of active service. 2. The Board determined DES compensates an individual only for service incurred 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. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 contains guidance on ABCMR hearings, and it states that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel: a. Paragraph 5-17 states that commanders who are special court-martial convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability per Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. b. Paragraph 3-9 provides that a separation would be described as entry level with uncharacterized service if processing was initiated while a Soldier was in an entry-level status, except when: (1) An under other than honorable conditions characterization was authorized by the reason for separation and was warranted by the circumstances of the case; or (2) Headquarters Department of the Army, on a case-by-case basis, determined a characterization of service as honorable was clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization was authorized when the Soldier was separated by reason of selected changes in service obligation, for convenience of the government, and under Secretarial plenary authority. (3) The Soldier has less than 181 days of continuous active military service, has completed initial entry training, has been awarded a military occupational specialty, and has reported for duty at a follow-on unit of assignment. 4. Army Regulation 635-200 states entry-level status is defined as the first 180 days of continuous active service for active-duty Soldiers. 5. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 6. 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. 7. 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. 8. Army Regulation 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. 9. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 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. 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. 11. 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. 12. 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. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 13. 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) AR20220010628 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1