IN THE CASE OF: BOARD DATE: 21 June 2023 DOCKET NUMBER: AR20220011505 APPLICANT REQUESTS: in effect, referral to a Physical Evaluation Board (PEB) to determine whether he should have been medically retired in lieu of discharge under the provisions of Army Regulations (AR) 635-200, chapter 4, due to non-retention on active duty. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * counsel’s brief * applicant’s statement * spouse’s statement * DD Form 2808 (Report of Medical Examination), 19 May 2003 * SF 600 (Chronological Record of Medical Care), 14 March 2005 * medical problem list (4 pages) * Post Deployment Health Assessment (PDHRA) * Permanent Orders 227-029 from Headquarters, 506th Infantry Regiment, Combined Task Force Currahee * DA Form 1059 (Service School Academic Evaluation Report), 21 July 2015 * Memorandum, subject: Notification of Denial of Continued Active-Duty Service under the Qualitative Management Program (QMP), 3 April 2017 * Memorandum, subject: Soldiers Qualifying for Separation Pay/Severance Pay, 14 August 2017 * DD Form 2808 (Medical of Examination), 21 August 2017 * DD Form 2807-1 (Report of Medical History) * treatment records (4 pages) * Disability/Separation Payment Computation * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 214C (Certificate of Release or Discharge from Active Duty, Continuation Sheet) * Enlisted Record Brief * Department of Veterans Affairs (VA) Rating Decisions, 6 April 2018, 13 May 2019, 30 April 2020 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 separated from the Army after completing almost 14 years of military service for failing an examination at the Army [Maneuver] Senior Leader Course (SLC). Department of Veteran Affairs (VA) and civilian doctors provided him documentation showing he was still suffering from Traumatic Brain Injury (TBI) caused by two bad parachute jumps/falls, Post Traumatic Stress Disorder (PTSD), and Sleep Apnea caused by 27 months of combat operations in Afghanistan. These doctors agree that his Afghanistan service-connected injuries contributed to him failing the examination at the SLC, which resulted in a QMP notification and ultimately the end of his Army career. 3. The applicant provided: a. A brief from his representing counsel, requesting referral to a PEB in order to determine whether the applicant should have been medically retired from the United States Army in lieu of being honorably discharged. (1) When he initially enlisted, the applicant was a beacon of great health, he had no family history of health issues, and did not have any documented medical conditions that would have impeded his ability to serve as a Soldier. His back issues began in 2005 before completing his first enlistment; he experienced back pain, neck pain, and tingling in his back, and neck when standing for long periods. (2) Following a medical appointment, he reenlisted and was sent to the Airborne Brigade Combat Team, Camp Ederle, Italy. After arriving in Italy, he deployed to Afghanistan in support of Operation Enduring Freedom (OEF) for a period of 15 months (from 12 May 2007 through 19 July 2008). He attended the Basic Leadership Course in 2008, and the Combative Level I Course, and Ranger Course in 2009. During his first deployment in 2007, he earned the Combat Infantryman Badge and was frequently exposed to the horrors of combat. (3) When he returned from his first deployment, he required varicose vein removal from his lower extremities and was diagnosed with systemic hypertension and hyperlipidemia. Subsequently, he was deployed to Afghanistan a second time, from 1 December 2009 through 1 December 2010. When he returned home and conducted his post-deployment medical screening, he indicated that he saw deceased bodies and he was more irritable than he was prior to this deployment. (4) Following these deployments, he was diagnosed with adjustment disorder on 18 November 2010. His next duty position was an instructor at the 5th Ranger Training Battalion in Dahlonega, GA. This is where he began to struggle more, including in the classroom, as evinced by the fact that it took him over a year to qualify as a Ranger Instructor. (5) He was treated by medical personnel for his worsening ankle pain, which was ultimately diagnosed as an acquired ankle deformity. Following this, he attempted to complete SLC in Alaska, but his cognitive abilities continued to decline. He found himself unable to focus, maintain course standards, and demonstrate academic efficiency. (6) Following his classroom struggles, he continued to serve to the best of his ability. Unfortunately, on 3 April 2017, he was notified of selection for elimination from the Army under the QMP, due to his failure to achieve course standards at the SLC in 2016. (7) On 8 May 2017, he was diagnosed with early-onset osteoarthrosis of the radiocarpal joint. He had his ankle reexamined and was diagnosed with ankle joint effusion on 30 May 2017. Furthermore, as his back issues continued to worsen, he was diagnosed with degenerative disc disease at L4-L5 and L5-S1 on 29 June 2017. On 22 August 2017, a full medical overview was conducted and at that time, he told medical personnel that he was suffering from headaches, memory loss, pain in the chest, high blood pressure, anxiety, trouble sleeping, pain in his joints and extremities, back pain, numbness and tingling in his toes, and fingers, back and foot trouble, impaired use of his limbs, knee trouble, indigestion, heartburn, intestinal trouble, hemorrhoids, and blood in his urine. Despite this myriad of medical issues, medical personnel opted not to refer him outside to expertise in these areas. (8) Ultimately, he was approved for disability severance pay in the amount of $34,140 and was discharged with an honorable characterization of service on 1 November 2017, due to non-retention on active duty. He served a total of 13 years, 11 months, and 20 days of active service. After being discharged, he was evaluated by the VA, who determined he was 100% permanently disabled due to a 40% TBI rating, 50% PTSD rating, and 50% sleep apnea rating. He also has flat feet, plantar fasciitis, spinal incapacity in both lower and upper back, high blood pressure, kidney stones, and renal cysts. (9) His quality of life has suffered tremendously since his discharge, which he now seeks to correct. Given the significance of his medical issues, this case should be determined on the merits. (10) He suffered a material injustice when he was not provided a medical retirement even though he clearly was struggling both physically and mentally during the twilight of his Army career. (11) He was unfit for continued service at the time of discharge because he had been diagnosed with PTSD and TBI which rendered him cognitively unable to complete further schooling. Had the Army recognized these apparent issues, he would have been treated for TBI and PTSD, rather than being unceremoniously disenrolled from SLC and selected for removal from the Army under the QMP. Furthermore, his back and foot issues rendered him incapable of completing the typical military tasks, especially in MOS 11B, such as riding in a high mobility multipurpose wheeled vehicle (HMMWV) for 12 hours, standing for 12 hours, carrying heavy loads, and living in an austere environment without his conditions worsening. (12) It is clear his symptoms are a direct result of military service. It is also clear that he displayed these symptoms at the time of discharge, as indicated by multiple medical reviews dating back to 2005 and not being retained by the Army because of poor performance in SLC due to his cognitive impairments. Moreover, he expressed many of these issues to medical personnel, including TBI and PTSD symptoms, both early in his career and at the time of discharge. As such, it is respectfully submitted that, in accordance with DODI 1338.28, the principle of equity requires that his fitness for military service in 2017 be evaluated by a new PEB. He has suffered professionally, personally, socially, physically, and mentally because of his Army service. He has suffered multiple medical conditions due to his service that will significantly diminish his quality of life in the civilian world. He is unable to do physical activities that were a source of joy. The invisible wounds he has suffered because of his combat service continues to haunt him and impact every aspect of his life. Despite receiving disability pay from the VA. He has still been grossly undercompensated for his many sacrifices for this country. He has been prejudiced by a prima facie example of material injustice which needs to be rectified by this Board. (13) In light of the facts and arguments presented, he requests that the ABCMR order a new PEB to be conducted to determine the effects of his injuries on his service at the time of discharge and provide him the opportunity to be thoroughly evaluated for a medical retirement. He will continue to be unjustly burdened by his medical issues until a new PEB is convened to determine his fitness for continued service at the time of discharge. Counsel’s entire brief is available for the Board’s review. b. The applicant’s statement indicates he was separated from the Army after almost 14 years of service for failing an exam at the SLC. He has provided VA and civilian doctors’ evidence stating he was still suffering from Traumatic Brain Injury (TBI) caused by several bad parachute jumps/falls, PTSD and Sleep Apnea caused by 27 months of combat operations in Afghanistan. His doctors agree that his service-connected injuries received in Afghanistan as well as two bad parachute jumps contributed to him failing the exam at SLC. Which resulted in a QMP notification and ultimately the end of his Army career. (1) His family has a tradition of military service and he decided to follow in their footsteps. He served his first enlistment at Fort Myer Virginia. His duties as a junior enlisted Soldier included escorts for foreign dignitaries, wreath ceremonies in Arlington [Cemetery], full honors funerals, and the eighth line of defense for the Military District of Washington. He soon reached the end of his enlistment contract and was forced to make a choice to get out of the Army or reenlist, he reenlisted for assignment to Italy. (2) When he deployed to Afghanistan it was very taxing on the body and mind given the amount of area they were required to cover, and the number of people needed to adequately cover the area of responsibility. They lost the first sergeant (1SG) and four other paratroopers from Dog Company (Heavy Weapons Company) in a roadside bomb attack. The Dog vehicle ran over 500 hundred pounds of homemade explosives, and the Taliban were in the area talking about it. They could hear them through the help of their interpreters. The Taliban was chatting it up on their cheap two- way radios without a care in the world and had no idea that there was two CH-47s full of paratroopers heading their way within the hour. His Brigade Intelligence claimed they found the Taliban responsible for the roadside bomb hanging out on a huge cache site less than a mile from the IED site. Attack Company was spun up and sent to kill or capture the Taliban and explode the Taliban cache site. Attack Company took two CH- 47 helicopters and touched down at the base of a massive hill. He was assigned the M249 SAW. Infantry guys will agree that you truly do not understand real pain if you have never had the pleasure of carrying a SAW with 600-800 rounds of ammunition in the mountains of Afghanistan. The elevation alone was 8,300ft above sea level in the valleys. If you had to hike up a mountain to interdict Taliban, the elevation would go up to 10,000ft plus. The elevation paired with the fact that you were carrying SAW felt like a car battery wrapped around your neck just added to the misery. Once the Taliban saw them coming up the hill, they tried to break contact but got caught up in a nasty draw and the Taliban fighters ran right into their lead element. The bad guys did not make it. They had to stay with the bodies and the elements of the cache for a few days. The Attack Company was waiting on “EOD” to show up and blow this cache site. They could not rely on the Afghan National Army (ANA) for anything. They often had ties with the Taliban and would play both sides to survive. His deployment ended after 15 months and the 173rd (ABCT) redeployed back to Italy. (3) Once back in Italy the unit got busy rotating personnel and preparing for the next deployment to Afghanistan which was slotted for the end of the year. After successfully completing Ranger school and a couple of unit training rotations in Germany, it was time to go back to Afghanistan for a 12-month deployment. This time he was a squad leader, and the fight was at Combat Outpost (COP) Sayedabad Wardak Provence Afghanistan. The Attack Company survived multiple engagements with the Haqqani network, foreign fighters, and the Taliban. This included several near ambushes, contact with dismounted IEDs, enemy recoilless rifle fire, and rocket/mortar attacks. He witnessed the aftermath of two Blue on Green incidents. His platoon was pinned down by “PKM/RPK” machinegun fire and was ambushed countless times. When the first Blue on Green incident happened, he remembers they had a Special Forces (SF) Operational Detachment Alpha (ODA) 20th Special Forces Group (SFG) compound inside their COP. One night he heard shooting and screaming coming from the SF compound. He later found out the shooter was an Afghan linguist/interpreter with a Top-Secret Clearance who had been working for the SF. In fact, this Afghan interpreter lived in Mclean, VA for some time before this incident happened. The interpreter now turned disgruntled active shooter went from room to room with an AK-47 and killed U.S. Soldiers as they slept. The interpreter/active shooter was able to kill two U.S. Soldiers before he was eventually shot and killed by one of the SF Operators. His company worked tirelessly throughout the night to help stabilize the situation and help secure the grizzly scene. The 1SG had Attack Company search the COP for secondary shooters, plan for a secondary attack, check the status of all guard towers, and help move the three KIAs to the Helicopter Landing Zone (HLZ), and obtain accountability for all personnel on the COP. This event really shook up the guys in Attack Company and destroyed the relationship they had with 20th SFG. (4) The second Blue on Green incident happened a few weeks later when ANA soldiers shot at Taskforce Ranger (TF Merrill) who were conducting a raid in a village near an ANA observation post (OP). The Ranger Unit took only one causality (PLT Medic) before unleashing a barrage of fire from a C-130 Spector gunship (Spooky) on an ANA outpost. In the morning, his platoon was tasked with a security detail to conduct a battle damage assessment of the ANA outpost. The scene looked like something out of a horror movie. The ANA outpost was covered with blood, guts, and human body parts. He remembers one ANA Soldier gathering his buddies body parts and placing them in an empty sandbag. There was a pile of feet still in shoes laying on the ground. This was caused by 30 plus rounds of 105mm High Explosives that the C-130 fired at the Afghan OP. The outpost looked like someone flung fifty pounds of raw ground beef onto the ground. One of the ANA soldiers had taken a direct hit from a 105mm. That grizzly scene really bothered some of the guys in the platoon. It is hard to unsee something like that. He felt/feel guilty for pushing some of the security detail so close to those dead Afghan bodies. They all knew that any positive rapport their platoon had made with the ANA soldiers was destroyed that day. This meant their commander had to rethink their strategy and have U.S. forces fill that void. He decided to leave the ANA on the sidelines during high-risk operations. This also meant they could not depend on the ANA soldiers during the Afghan elections that was fast approaching. The commander’s original plan called for the ANA’s support for multiple blocking positions and presence patrols. Attack Company would now have to fill that void. He would like to point out that during the month of September 2010, his platoon was tasked with denying the Taliban freedom of maneuver around several Afghan voting poling sites. This patrol schedule paired with the manning of multiple blocking positions put a huge mental and physical strain on their platoon. The whole month of elections was a blur of intense fighting with the Taliban, sleep deprivation, daily attacks, indirect fire, harassment of logistical supplies, endless guard/patrol rotations, and all this with zero support from the ANA. They were supporting the Afghan election process nonstop that month, which involved US Soldiers living on a small outpost with the Afghan National Army. Most of the guys in the platoon were able to get about 2 hours of sleep maximum a day. Some of the guys, including him got dysentery. He had the full on gastral intestinal dysentery. This was one of the worst things he has ever been through. His dysentery lasted about 2 weeks. It was most likely caused by bad water, contaminated food, and squalid living conditions. He still has mild to moderate stomach and kidney issues. There were also several burn pits located on COP Sayedabad and COP Tillman. They often burned lithium batteries, medical waste, human waste, rancid food, and construction waste in the burn pits. The smoke from the burn pits would hit you in the face without warning a couple times a day. Sayedabad was a small 100-man COP that did not really have the real estate to burn anything. It felt like the only way to get a fresh air was to go outside the wire on a combat patrol. He is not sure why the Army failed to see the importance and long-term benefits of safer offsite waste disposal. During the end of that combat deployment, he became incredibly quiet and somewhat disengaged with the world around him. He had trouble finding satisfaction in the things he once enjoyed. He often had random outbursts of anger that left everyone in the room looking somewhat puzzled and confused. He has issues concentrating and it seems like his mind is always somewhere else. He often has trouble sleeping and he keeps playing out those intense fire fights in his head. (5) Eventually he left Italy on orders to the 5th Ranger Training Battalion (RTB), Camp Frank D Merrill, Dahlonega GA to start the Ranger Instructor Certification process, which usually takes about 6 months to complete. It took him almost a year to get certified to teach Ranger students. He often struggled to memorize the classes he needed to teach. He always drifted off and he would catch himself thinking about intense gunfights in which his platoon was involved in Afghanistan. He finished his time at the 5th RTB, and he was assigned to the 4-25th, Fort Richardson, AK, where he worked as a Platoon Sergeant, Brigade Operations Sergeant, and Brigade Marksmanship Noncommissioned Officer in Charge (NCOIC). This is when the heavy brain fog with cluster migraines really started to take hold of his life. He was constantly yawning throughout the day, and he had developed a sensitivity to sunlight or bright lights. Both seem to make the migraines worse. Often, he had to find a quiet dark place to get the migraines to subside. It has been over 11 years since he set foot in Afghanistan, but he still sees those images playing over and over in his head throughout the day causing his mind to drift. It constantly feels like a movie being played behind his eyeballs. He still gets strange cluster migraine headaches several times a week. He has issues with balance and mobility. He loses his balance often and it feels like his equilibrium is out of whack. The migraines for him are the worst. It is hard for him to stay focused on a task when his head feels like it is splitting wide open. His physical and mental health conditions have caused huge problems for his family, marriage, attending college courses, obtaining, and maintaining adequate employment. He strongly feels that his service-connected injuries have placed the biggest burden on his wife and two school age children. He hopes the Army will consider the negative impact it has caused his family. Please take note of this new information he has provided pertaining to his physical and mental service-connected disabilities. The applicant’s entire statement is available for the Board’s review. c. A statement from the applicant’s spouse states she and the applicant have been married for 15 years. Together they have 2 sons, age 9, and 3. She has been with him through multiple combat deployments, many month-long training events, and the never- ending schools. Throughout his career he has always been a top performing Soldier and always placed the Army’s mission first. (1) Being in the military as an airborne infantry Soldier, was a lifelong career for her husband that was stripped from him when he was told he had to leave the Army for failing a graded examination at the Army's Maneuver Center of Excellence, SLC. He was told that he needed to forfeit his current indefinite contract and separate from the Army by November 2017. They later found out he had several TBI’s with a VA rating of 40%. Two of which happened while he was on airborne status. The Army started some type of head trauma testing on her husband in 2016 but abruptly stopped treatment without providing him with any type of explanation, any type of treatment plan, or the possibility of a reclassification to another career field. She believes he should have been medically retired under Chapter 61 for the head injuries he sustained while he was on airborne status and the PTSD for his engagement in combat operations. The way he was treated during his last year of service was very sad and came as a big shock. (2) She left a fulfilling career for a job that would offer health insurance for their family. The applicant felt a loss of purpose. He has tried to obtain some college education with multiple colleges but hasn't been able to finish with a degree. He was employed for about 4 months with a roofing company in South Florida but couldn't physically continue that line of work. In her opinion he has been struggling with depression and anxiety in the years following his separation from the Army (3) He is wildly energetic when he wakes up but loses all momentum as the day continues. She has to help him with time management, this includes making appointments and keeping them. His short-term memory is failing. After his withdrawal from Afghanistan, his mind was almost solely occupied with the terrifying events he had experience during his deployments, and he seemed to be questioning the value of his time in service. (4) Initially after separation he was rated 90% disabled, and now he is rated 100% permanently/totally disabled. This includes ratings for TBI (40%), PTSD (50%), sleep apnea (50%), flat feet, plantar fasciitis, two spinal injuries, one in his lower back and one in his neck, high blood pressure, kidney stones, and a renal cyst. He also has a few other ailments that are service connected. He is dealing with acute back and foot pain as well as TBI and headaches that leave him unable to focus. (5) A few days ago, he threw out his back. He can't even pick up their smallest son because of this injury. He seems to lose his balance sometimes when he's moving around the house. He has violent nightmares about the Taliban that wakes her up a few times a month. He screams in his sleep and wake up completely soaked in sweat. He also has significant trouble getting to sleep and staying asleep. He only sleeps a few hours a night and when he has one of those dreams he can't go back to sleep. It usually catches up with him in the form of needing a nap in the middle of the day. He explained the nightmares were caused by an incident he was a part of in Afghanistan. This is what he has told her about his 2009-2010 deployment. “My Company participated in a multitude of combat engagements with the Haqqani Network, foreign fighters, and the Taliban. This included several near ambushes, contact with dismounted IEDs, enemy recoilless rifle fire, rocket/mortar attacks, and he witnessed the aftermath of two Blue on Green incidents.” He was nearly blown up by an “RPG,” he was pinned down by a sniper, and “PKM/RPK” fire and ambushed on more than one occasion. (6) An Afghan linguist/interpreter with a Top-Secret Clearance was going to be fired by the Special Forces for stealing equipment and selling it to the Taliban. Early in the morning the top tier interpreter went room to room and shot and killed two US Soldiers while they slept. The interpreter was killed when the chief warrant officer of the group engaged him when he was going into the third room. This incident led to a very long night and an overhaul on base access. They worked throughout the night to process the grizzly scene, which included sweeping squads through the COP to identify secondary threats, checking the manning of guard towers, getting accountability of all Afghan workers on the COP, and moving dead bodies to the HLZ for extraction. This event really shook up the guys in the Attack Company. He is a different man not only from the deployments, but from the less than appropriate career exit he was given. 4. The available evidence shows the applicant served honorably in the Regular Army (RA) from 12 November 2003 until he was discharged for immediate reenlistment on 20 October 2010. He reenlisted in the RA, on 21 October 2010, for a period of 6 years, in pay grade E-6. He held military occupational specialty (MOS) 11B (Infantryman). 5. The applicant provided the following documents: a. A Post Service Deployment Health Assessment, dated 3 March 2011, confirming he reported he was in excellent health. His major concern was vascular issues, right leg, for the past 2 years, he would seek further care in Dahlonega, GA. b. Service School Academic Evaluation Report (AER), dated 21 July 2015, showing he attended the “Maneuver Senior Leader Course, Class 005-15,” from 7 July 2015 to 21 July 2015 and he was released from the course when he failed to achieve course standards. c. Memorandum from the U.S. Army Human Resources Command, subject: Notification of Denial of Continued Active-Duty Service Under the QMP, dated 3 April 2017. He was advised: (1) The QMP Selection Board conducted a comprehensive review of his record for potential denial of continued service under the QMP and recommended he be denied continued active-duty service. (2) As a result, the Director of Military Personnel Management approved the board's recommendation and he would be involuntarily discharged from the Army not later than 1 November 2017 or upon reaching his contractual expiration term of service, or whichever was earlier. In lieu of involuntary discharge, he had the following options: (3) He could request an earlier separation date; however, the date requested must allow for a minimum of 90 days for pre-separation counseling via the Soldier for Life Transition Assistance Program. Requests for earlier separation, once submitted, may not be Withdrawn. Further, he was advised of his rights. d. Separation Report of Medical Examination, dated 21 August 2017, showing explanations for “Yes” answers as: * left ankle Bronston Reconstruction (2012) * bulged L-5 Disk (2006) * hairline fracture left arm (2005) * broken right wrist (2005) * fallen arches (right and left) e. Four Medical Records showing on: * 28 October 2016, he had a magnetic resonance imaging (MRI) of the brain without contrast * on an unknown date – He was evaluated for his right forearm, Findings/impression: Early osteoarthrosis of the radiocarpal joint; nonunion of the ulna styloid; no acute fracture or dislocation identified; soft tissues are unremarkable * 5 May 2017, he was evaluated for chronic ankle pain, there was no evidence of fracture or dislocation; there was mild tibiotalar joint space narrowing and marginal osteophyte formation; ankle mortise appears intact * 8 May 2017, he was evaluated for suspected fracture of his right forearm * 30 May 2017, he was evaluated for left ankle and foot pain * On 13 June 2017, his lumbar spine was evaluated; there was a slight left convex lumbar curvature without listhesis; there was no vertebral body height loss or evidence of fracture; there was mild disc and endplate osteophyte formation at T11-T12; there was lumbar endplate osteophyte formation without significant disc space narrowing; there was mild facet hypertrophy at L4-L5 and L5-S1; no acute findings - mild lumbar spondylosis * 13 June 2017, an MRl of the lumbar spine was performed; the sagittal T1, T2, and axial T2 were acquired; findings: vertebral body heights were maintained appropriately with no evidence of acute fracture or osseous malalignment; conus medullaris was located at L1, and the cauda equina demonstrated a normal appearance; sub-centimeter T2 hyperintense left renal lesion * L1-L2: no central canal or neuroforaminal narrowing * L2-L3: no central canal or neuroforaminal narrowing * L3-L4: no central canal or neuroforaminal narrowing * L4-L5: mild disc desiccation: no significant loss of disc height; small posterior central disc bulge with associated annular fissure and mild facet joint hypertrophy results in mild bilateral neuroforaminal narrowing; no significant central canal narrowing * L5-S1: mild disc desiccation and loss of disc height; small posterior central disc bulge and mild facet joint hypertrophy results in mild bilateral neuroforaminal narrowing; no significant central canal narrowing f. Disability/Separation Payment Computation, showing his service was computed from 12 November 2003 through 1 November 2017, this service equals 13 years 11 months, and 21 days. 6. Orders 194-0175, dated 13 July 2017 amended by Orders 229-0173 assigned him to the U.S. Army Transition Point for separation processing, effective 3 September 2017. 7. A DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms, on 1 November 2017, he was discharged from active duty under AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, for completion of required active service with an honorable characterization of service, in the rank of sergeant first class/paygrade E-7. His awards are listed as the Afghanistan Campaign Medal with 2 Campaign Stars, Army Commendation Medal (5th Award), Army Achievement Medal (3rd Award), Army Good Conduct Medal (4th Award), National Defense Service Medal, Global War on Terrorism Service Medal, Noncommissioned Officer Professional Development Ribbon (2nd Award), Army Service Ribbon, Overseas Service Ribbon (4th Award), NATO Medal, Combat Infantryman Badge, Expert Infantryman Badge, Ranger Tab, Parachutist Badge, and Expert Marksmanship Qualification Badge with Carbine Bar. He received imminent danger pay from 1 December 2009 to 1 December 2010 and from 12 May 2007 to 19 July 2008. He completed 13 years, 11 months, and 20 days of net active service during this period. He received $34140.65 in separation pay. 8. The following three VA Rating Decisions, show on: a. 6 April 2018, he was granted service connection for: * obstructive sleep apnea, granted with an evaluation of 50% * bilateral pes planus (claimed as flatfoot, acquired), granted with an evaluation of 30% * healed fracture right (dominant) wrist, residuals was granted with an evaluation of 10% * intervertebral disc syndrome (IVDS) lumbosacral spine L4-L5, L5-S1 with spondylolisthesis (claimed as degenerative disc disease and bulging disc) was granted with an evaluation of 10% * radiculopathy, left lower extremity secondary to service-connected for IVS lumbosacral spine IVDS lumbosacral spine L4-L5, L5-S1 with spondylolisthesis was granted with an evaluation of 20% * left ankle collateral ligament sprain with tendonitis status post Bostrom reconstructive surgery was granted with an evaluation of 10% * right (dominant) distal radius fracture, residuals was granted with an evaluation of 10% * tinnitus was granted with an evaluation of 10 percent * nephrolithiasis (Kidney stones) with right renal cortical cyst was granted with an evaluation of 0% * scarring status post endovenous laser ablation, right lower extremity (claimed as right leg surgery varicose vein removal) was granted with an evaluation of 0% * ankle surgical scar secondary to service-connected left ankle, collateral ligament sprain with tendonitis, status post Bostrom reconstructive surgery granted with an evaluation of 0% * left (non-dominant) arm, hairline fracture was denied * all effective 2 November 2017 b. 13 May 2019, he was granted service connection for: * radiculopathy sciatic nerve, left lower extremity (claimed as left side lumbago with sciatica), which is currently evaluated as 20% disabling was decreased to 10% * radiculopathy upper and middle radicular nerve left upper extremity is ranted with an evaluation of 20%, effective 19 February 2019 * radiculopathy upper and middle radicular nerve right upper extremity is granted with an evaluation of 20%, effective 19 February 2019 * IVDS lumbosacral spine L4-L5, L5- SI with spondylolisthesis (claimed as degenerative disc disease, bulging disc, and thoracic spine segmental and somatic dysfunction), which is currently 10% disabling, is continued * cervical neck strain (claimed as segmental and somatic dysfunction, cervical spine) is granted with an evaluation of 10%, effective 19 February 2019 * radiculopathy sciatic nerve, right lower extremity, is granted with an evaluation of 10%, effective 19 February 2019 * a decision on entitlement to compensation for atypical melanocytic proliferation, left cheek was deferred c. 30 April 2020, he was granted service connection for: * PTSD was granted with an evaluation of 50% * TBI was granted with an evaluation of 40% * both effective 4 September 2019 * 4 September 2019, the VA deemed him permanent and totally disabled due to service-connected disabilities 9. There is nothing in his Interactive Personnel Electronics Records Management System record, and he provided nothing, showing that that his Afghanistan service- connected injuries contributed to him failing the examination at the SLC, which resulted in a QMP notification and ultimately the end of his Army career. 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, USC, 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. AR 40-501 (Standards of Medical Fitness) states Soldiers with conditions listed in Chapter 3, who do not meet the required medical standards will be evaluated by an medical evaluation board (MEB). Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from service. Physicians are responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB. 14. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), states 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. 15. AR 635-200 states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. Personnel who are physically unfit for retention (see AR 40–501, chapter 3) but who were accepted for, or continued in, military service per AR 635–40, will not be separated because of expiration term of service (ETS) unless processing for separation because of physical disability is waived. 16. 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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. Through counsel, the applicant is applying to the ABCMR requesting a referral to the Disability Evaluation System (DES) and a medical retirement. 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 he entered the regular Army on 12 November 2003 and was honorably discharged on 1 November 2017 under provisions provided in chapter 4 of AR 635-200, Active Duty Enlisted Administrative Separations (19 December 2016): Non-retention on active duty. d. A 3 April 2017 memorandum from the United States Army Human Resources Command notified the applicant that his record had been reviewed by the Qualitative Management Program Selection Board with the subsequent recommendation that he would be involuntarily discharged from the Army not later than 1 November 2017. He was given a suspense of 5 May 2017 to appeal the decision. An appeal was not submitted with the supporting documentation nor uploaded into iPERMS. e. His clinical encounters in AHLTA from 1 November 2016 through 1 November 2017 were reviewed. The applicant was seen numerous times during this period for intermittent low back pain, a condition with an onset in 2006. The notes state it had slowly worsened during this period. His visits include those to his primary care manger, physical therapy, and the chiropractor. The applicant was never placed on a permanent duty limiting permanent profile and there is no probative evidence it significantly interfered with this ability to Soldier. f. He was seen in June 2017 for daytime sleepiness and referred for a sleep study. The study obtained a month later revealed mild sleep disturbances. The applicant was not diagnosed with sleep apnea at that time. g. The applicant underwent his pre-separation medical examination on 21 August 2017 after which the provider wrote: EXAM, Occupational, Retirement or Separation From Military Uniformed Service, Long: A 37-year-old male presents to clinic for a separation physical. Packet completed by patient and all labs completed. Physical examination within normal limits. Packet completed with provider and all labs reviewed. No abnormalities reviewed. One copy provided to patient other copy placed in records. All questions answered. h. The applicant’s final NCO Evaluation Report (SSG-1SG/MSG) was an extended annual from 3 May 2016 thru 2 August 2017. It shows he had passed his Amy physical Fitness Test and met or exceeded the standard in all measured attributes and competencies. His senior rater opined on his overall potential: “SFC [Applicant] is an aggressive and impact-making organizational leader in our talent rich Airborne, Arctic Reconnaissance Squadron. His ability to coach and mentor Paratroopers and leaders improves lethality and confidence across the Brigade Combat Team. SFC [Applicant] possesses leadership and promotion potential, continue to select for promotion and schooling through the Senior Leaders Course.” i. There is no probative evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. j. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings. The first were awarded on 2 November 2017, the day after his discharge from the Army. These included sleep apnea (50%), flat foot condition (30%), tinnitus (10%), and several minor musculoskeletal issues each awarded 10%. He was not awarded disability ratings for PTSD (50%) and traumatic brain disease (40%) until 4 September 2019. k. The DES compensates an individual only for 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. That role and authority is 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 the applicant’s case to the DES is unwarranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advisory official finding that a referral of the applicant’s case to the DES is unwarranted. The Board noted the advisory opine found no probative evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Furthermore, the Board determined there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. Based on the advisory opinion and evidence in the records, the Board agreed relief is not warranted. ? 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. AR 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. 3. AR 40-501 (Standards of Medical Fitness), in effect at the time, provides information on medical fitness standards for enlistment, induction, appointment, retention, separation, including retirement and related policies and procedures. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for all enlisted Soldiers of the active Army, Army National Guard, and USAR. a. 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 physical evaluation board with the following caveat: Physicians who identify Soldiers with medical conditions listed in chapter 3 should initiate an MEB at the time of identification. Physicians should not defer initiating the MEB until the Soldier is being processed for non-disability retirement. Many of the conditions listed in chapter 3 (for example, arthritis in paragraph 3-14b) fall below retention standards only if the condition has precluded or prevented successful performance of duty. b. Possession of one or more of the conditions listed in chapter 3 does not mean automatic retirement or separation from service. Physicians are responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB. 4. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System according to the provisions of Title 10, USC, Chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18 (Disability Evaluation System). It set 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. When a member is being processed for separation 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 (until he or she is referred to the Army Physical Disability Evaluation System for evaluation) creates a presumption that the member is fit for duty. The presumption of fitness may be overcome if the evidence establishes that: (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. c. 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. 5. Title 10, U.S. Code, Section 1201, provides for the physical disability retirement of a service member who has at least 20 years of service or a disability rating of at least 30%. Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 6. AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 4 states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. Personnel who are physically unfit for retention (see AR 40–501, chapter 3) but who were accepted for, or continued in, military service per AR 635–40, will not be separated because of ETS unless processing for separation because of physical disability is waived. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011505 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1