IN THE CASE OF: BOARD DATE: 23 August 2023 DOCKET NUMBER: AR20220011245 APPLICANT REQUESTS: in effect, physical disability retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * National Guard Bureau (NGB) Form 23A (Army National Guard (ARNG) Current Annual Statement), dated 30 December 2022 * Georgia(GA) ARNG Orders 0004547557.00, 24 April 2023 FACTS: 1. The applicant states her discharge should be changed to honorable medical retirement. 2. After a prior period of service in the Regular Army from 30 December 1987 through 20 June 1989, amounting to 1 year and 24 days of net active service, the applicant enlisted in the ARNG on 30 December 2005. 3. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty on 29 June 2006, in support of Operation Jump Start. She was honorably released from active duty on 5 July 2007, after 1 year and 7 days on self-terminating orders due to completion or required service and returned to her GAARNG unit. 4. A DD Form 214 shows the applicant was ordered to active duty on 22 August 2020, in response to/in support of Covid-19, under Presidential Proclamation 9994, not a contingency operation. She was honorably released from active duty and returned to her GAARNG unit on 23 June 2021, due to completion of required active service and credited with 10 months and 2 days of net active service this period. 5. A GAARNG memorandum, dated 31 August 2022, shows the following: a. The applicant was notified of her medical disqualification. Under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, her current medical conditions and/or physical defects were determined to disqualify her from further military service. The applicant’s medically disqualifying conditions were as follows: * knee injury/pain (bilateral) * diabetes mellitus – oral medication (well-controlled) * lymphedema (localized swelling/bilateral) * recurrent kidney stones (bilateral) * chest pain b. The applicant was advised she must choose one of the following: (1) Accept the medical disqualification(s) and be medically discharged if she had less than 15 years of creditable service for retirement. (2) Accept the medical disqualification(s) and be medically retired, and transferred into the Retired Reserve, if she had 15 years or more of creditable service for retirement. (3) Request a non-duty related Physical Evaluation Board (NDR-PEB), which would determine her fitness for continued military service. The NDR-PEB would be a non-appearance board held at Fort Sam Houston, TX. This board would review all pertinent medical information pertaining to her disqualifying conditions, both from her military records and documents provided by her personal physician. If she chose this option, she must submit a complete packet prior to the suspense date of 31 October 2022. c. She was advised if she believed her medical condition was incurred or aggravated while performing active or inactive duty for training while a member of the ARNG, she must provide an approval memorandum along with an approved DA Form 261 (Report of Investigation Line of Duty and Misconduct Status) and an approved DA Form 2173 (Statement of Medical Examination and Duty Status. d. This memorandum constituted the applicant’s notification of separation. Failure to respond by the suspense date would result in a transfer to the Retired Reserve or discharge, whichever applied. e. The applicant signed the bottom of the memorandum acknowledging receipt of the notification. 6. A DA Form 4856 (Developmental Counseling Form) shows the following: a. The applicant was counseled by the GAARNG, Medical Program Manager, on 31 August 2022 regarding her medical disqualification from further service in accordance with Army Regulation 40-501, chapter 3. She had been provided with a notification of medical disqualification, which detailed her disqualifications and options in the Medical Retention Determination Point (MRDP) process and advised on her election options. b. The applicant acknowledged she must make an election regarding her separation from the GAARNG by the suspense date and that failure to make an election would result in her discharge based on her service record. c. She acknowledged if she elected to go before the NDR-PEB, she must submit her completed packet to the Medical Programs Manager prior to the suspense date. d. She acknowledged she was highly encouraged to seek counsel from the Office of the Judge Advocate General. e. She acknowledged having a Department of Veterans Affairs (VA) disability rating of 50 percent for the following conditions: * glaucoma * blood pressure * hemorrhoids 7. A GAARNG memorandum, subject: Notification of Intent for Medical Retention Determination Point, dated 31 August 2022, shows the following: a. The applicant acknowledged she had knee injury/pain (bilateral), diabetes mellitus- oral medication (well controlled), lymphedema (localized swelling/bilateral), recurrent kidney stones (bilateral), and chest pain, which medically disqualified her for further military service in accordance with Army Regulation 40-501, chapter 3. b. She acknowledged having been counseled regarding her rights and responsibilities and under stood those rights and responsibilities. c. She acknowledged understanding that the elections she made therein were irrevocable and not subject to appeal. She acknowledged that this election was made personally by her, without influence or coercion from any third party. d. The applicant elected item (b) acknowledging she had over 15 years, but less than 20 years of qualifying service. She requested to be discharged from the GAARNG for early retirement under Title 10 U.S. Code, section 1273b, and waive her right to a NDR-PEB. She understood she would not be able to collect retirement benefits until age 60. Her requested date of retirement was 30 September 2022. 8. A DA Form 3349-SG (Physical Profile Rating) shows the applicant had the following permanent physical profile ratings: * “2” in factor L (Lower extremities) due to knee pain/injury (left), effective 8 June 2017 * “2” in factor L due to lower back injury/pain, effective 8 June 2017 * “2” in factor L due to Army Combat Fitness Test (ACFT) modification (l) effective 9 January 2021 * “3” in factor S (Psychiatric) due to bipolar disorder, effective 17 October 2021 * “3” in factor L due to knee injury/pain (bilateral), effective 17 September 2022 * “3” in factor P (Physical capacity or stamina) due to diabetes mellitus – oral medication (well-controlled), effective 17 September 2022 * “3” in factor P due to lymphedema (Localized swelling/bilateral), effective 17 September 2022 * “3” in factor P due to chest pain, effective 17 September 2022 * “2” in factor P due to pauses in breathing during sleep, effective 9 August 2022 * “3” in factor P due to recurrent kidney stones (bilateral), effective 17 September 2022 9. The applicant’s NGB Form 23A, prepared on 30 December 2022, shows she completed 18 years, 8 months, and 21 days of creditable service for retired pay as of that date. 10. GAARNG Orders 0004547557.00, dated 24 April 2023, reassigned the applicant to the Retired Reserve effective 1 October 2022, due to assignment loss reason XM (Early Qualification for Retired Pay at age 60 (Involuntary-Medically Disqualified Members)). The orders reflect the applicant completed 18 years, 8 months, and 21 days of total service, including 6 years, 10 months, and 1 day of total active Federal service. 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 (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 in essence requesting a referral to the Disability Evaluation System (DES). c. The Record of Proceedings details the applicant’s service and the circumstances of the case. Her Army National Guard Current Annual Statement (NGB Form 22) shows she entered the Army National Guard on 30 December 2005, has 16 consecutive good years thru 29 December 2022, and remains in the Georgia Army National Guard (GAARNG). There were no separation orders submitted with the application nor found in iPERMS. d. On 31 August 2022, the GAARNG noticed her she had several medical conditions which were disqualifying for further military service: “Listed below is {sic} your medical disqualification IAW AR 40-501: * Knee Injury/ Pain (Bilateral) * Diabetes Mellitus-Oral Medication (Well Controlled) * Lymphedema (Localized swelling) (Bilateral) * Recurrent Kidney Stones (Bilateral) * Chest Pain.” e. The applicant elected to retire by initialing the option and writing in her requested date of retirement: “I have over 15 years but less than 20 years of qualifying service. I request to be discharged from the Georgia Army National Guard for early retirement under 10 USC 12731b, and waive my right to a NDR-PEB [Non-duty Related Physical Evaluation Board. I understand that I will not be able to collect retirement benefits until age 60. Requested date of Retirement (before suspense date) 30 SEP 22.” f. The applicant selected to retire under 10 U.S. Code § 12731b, Special rule for members with physical disabilities not incurred in line of duty (15-year notice of eligibility). Passed in 1999, this statute authorizes the Secretary concerned to treat a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit due to physical disability not incurred in the line of duty as having met the service requirements for years of service computed under 10 U.S. Code § 12732. The Secretary can then provide the member with a notification that the member has completed at least 15, and less than 20 of service. This “15-year Notice of Eligibility” authorizes a non-regular retirement. g. She declined a non-duty related physical evaluation board (NDR PEB). The boards allows Reserve Component (RC) Service Members who are not on a call to active duty of more than 30 days and who are pending separation for non-duty related medical conditions but desire to remain in their component to enter the Disability Evaluation System (DES) for a determination of fitness. A non-duty related physical evaluation board (NDR PEB) affords these Soldiers the opportunity to have fitness determined under the standards that apply to Soldiers who have the statutory right to be referred to the DES for a duty related medical condition. After 2014, these boards also look to see if the referred condition(s) were duty related, and if so, return them to the sending organization for entrance into the duty related processes of the DES. h. No evidence one or more of these conditions was incurred in the line of duty was submitted with the application and there are no applicable line of duty determinations in MEDCHART. i. There is no probative evidence the applicant had any duty incurred medical condition which fails the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness. Thus, there is no cause for referral to the Disability Evaluation System. j. It is the opinion of the ARBA Medical Advisor that a referral of her case to the DES 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. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advisory official finding a referral of her case to the DES is not warranted. Based on the opine, the Board determined there is no probative evidence the applicant had any duty incurred medical condition which fails the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness. In addition, the Board found no evidence in the record that one or more of these conditions was incurred in the line of duty was submitted with the application and there are no applicable line of duty determinations in the applicant’s medical records. Based on this, the Board denied relief. 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 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, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 Physical Evaluation Board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 2. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 3. Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40 with the following caveats: a. U.S. Army Reserve (USAR) or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Reserve Component Soldiers pending separation for In the Line of Duty injuries or illnesses will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 635-40. c. Normally, Reserve Component Soldiers who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 (USAR Assignments, Attachments, Details, and Transfers) or discharged from the Reserve Component per Army Regulation 135–175 (Separation of Officers), Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative Separations), or other applicable Reserve Component regulation. They will be transferred to the Retired Reserve only if eligible and if they apply for it. d. Reserve Component Soldiers who do not meet medical retention standards may request continuance in an active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reserve Component Soldiers with non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. 4. 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. 5. Title 10 USC, section 12731b (Special rule for members with physical disabilities not incurred in the line of duty), enacted 23 October 1992, provides in pertinent part that in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes as of 1 October 1991. This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC. 6. Title 10, U.S. Code, section 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. 7. 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. 8. 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) AR20220011245 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1