IN THE CASE OF: 

		BOARD DATE:  30 August 2022

		DOCKET NUMBER: AR20220000535


APPLICANT REQUESTS: reconsideration of his previous request to be medically 
retired.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	Reconsideration statement
*	Previous denial memorandum
*	Department of Veterans Affairs summary of benefits 

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Numbers:

*	on 27 March 2018
*	on 2 April 2020.

2.  The applicant does not provide any medical evidence; however, he provides a 
previously submitted VA summary of benefits (20 February 2009), and an argument in 
which he states: 

	a.  In its denial, the Board stated there was insufficient evidence that he tried to 
obtain "good years·· by joining a Guard or Reserve Unit. As evidenced by the letter by 
Sergeant First Class he made multiple, prolonged attempts to get into multiple units, 
including medical units, that as a Board-Certified physician, he was imminently qualified 
to fill, but because of the 3 on his PUHLES and disability rating of 70% (raised to 80% 
March 2012 and 90% August 2014), no unit would consider him for appointment. He 
had every intention to complete his military career but was told he was not retainable. 
He tried to get positions as a flight surgeon, medical officer, and training officer for 
medics deploying to Afghanistan, but was told the same thing: he was not medically 
qualified. He went to Muster on a yearly basis to try to further his career, but they were 
not able to aid him either. He asked about a medical evaluation board (MEB) when he 
was at a muster and was told that the request would need to be done by his unit 
medical officer or commander. He advised him that he was unable to find a unit that 
would take him, and he said there was nothing he could do, but as long as he stayed in 
the Reserves, he could apply when he was 60. 

	b.  The Board continues to state regulations as the reason for his denial but fail to 
acknowledge the multiple attempts made over multiple years to get into virtually any 
unit. Essentially, these units acted as the "secretary" finding him 'unfit to perform the 
duties of the member's office, grade, rank, or rating because of physical disability 
incurred while entitled to basic pay." Per 10 U.S. Code§ 1201 -Regulars and members 
on active duty for more than 30 days: retirement, “If the Secretary also makes the 
determinations with respect to the member and that disability specified in subsection 
(b), (b)Required Determinations of Disability.-Determinations referred to in subsection 
(a) are determinations by the Secretary that- (1) Based upon accepted medical 
principles, the disability is of a permanent nature and stable; (2) the disability is not the 
result of the member's intentional misconduct or willful neglect, and was not incurred 
during a period of unauthorized absence; and (3)either- (A) the member has at least 20 
years of service computed under section 1208 of this title or (B)the disability is at least 
30 percent under the standard schedule of rating disabilities in use by the Department 
of Veterans Affairs at the time of the determination; and either­ (i) the disability was not 
noted at the time of the member's entrance on active duty (unless clear and 
unmistakable evidence demonstrates that the disability existed before the member's 
entrance on active duty and was not aggravated by active military service); (ii) the 
disability is the proximate result of performing active duty; (iii) the disability was incurred 
in line of duty in time of war or national emergency; or (iv) if the disability was incurred in 
line of duty after September 14, 1978. 

	c.  As stated earlier, the Units themselves acted as the "secretary" making the 
determination that his PUHLES and disability rating made him unfit for further duty. He 
tried to have the VA waive his disability rating which they refused to do, further 
supporting justification. 

	d.  Required determinations of disability: (1) My disabilities are permanent; (2) His 
disabilities are NOT a result of intentional misconduct or willful neglect, and was not 
incurred during period of unauthorized absence; and (3) Either-(A)	the member has at 
least 20 years of service computed under section 1208 of this title; (he does not) or (B) 
the disability is at least 30 percent under the standard schedule of rating disabilities in 
use by the Department of Veterans Affairs at the time of the determination; (Yes) and 
either-3. (ii) the disability is the proximate result of performing active duty; (Yes) (III)the 
disability was incurred in line of duty in time of war or national emergency (Yes); or (iv) 
the disability was incurred in line of duty after September 14, 1978. (Yes).

	e.  Again, he requests that his military record be changed in order to grant him the 
respect of being medically retired. Per the regulations that the Board has quoted, he 
feels he has met the burden of proof to qualify for medical retirement. He has enclosed 
a copy of his VA disability rating of 70% dated February 20, 2009, to demonstrate (3) 
(B), disability at least 30% rated by the VA. 

3.  Review of the applicant’s service records shows: 

	a.  The applicant was born in. He turned 60 in. 

	b.  He served in the Colorado Army National Guard (COARNG) from 9 March 1992 
to 15 February 1999 and from 1 February 2000 to 26 January 2004, as Reserve 
commissioned officer, Army Medical Specialist Corps. He was honorably discharged 
from the COARNG on 26 January 2004 by reason of “Reappointment for Special 
Branch Change.” 

	c.  He was reappointed as a captain in the COARNG the following day. He entered 
active duty on 28 October 2004 and served in Iraq from 27 November 2004 to 5 June 
2005. He was honorably released from active duty on 2 July 2005 and was transferred 
back to his COARNG unit.

	d.  He previously provided a TBI (traumatic brain injury) Questionnaire, signed by a 
medical provider on 10 November 2005. This document shows he deployed three times 
since 11 September 2001 and he sustained three injuries during the course of his 
deployments. He was injured as a result of an improvised explosive device (IED) blast, 
a motor vehicle accident, and as a result of falling from a helicopter while deployed; he 
sustained his most serious injury in January 2005.  

		(1)  He indicated the following symptoms were related to the injury he sustained 
in a vehicular accident: "being dazed, confused, or seeing stars."

		(2)  He indicated the following symptoms were related to the injuries he sustained 
while deployed: He experienced headache right after the injury but was not currently 
suffering from the symptom. He also experienced ringing in ears, irritability, and sleep 
problems right after the injury and was still experiencing these symptoms.  The medical 
provider diagnosed the applicant with PTSD (post traumatic stress disorder), left 
hearing loss, and bilateral tinnitus.

	e.  On 2 April 2006, he underwent a physical examination for retention and flight 
training. He was found qualified for service with a physical profile (PULHES) of 111111.

	f.  He entered active duty on 31 August 2006 and served in Kuwait/Iraq from 10 
September to 10 December 2006. He was honorably released from active duty on 26 
December 2006 and was transferred back to his ARNG unit.  

	g.  He resigned and was honorably discharged from the ARNG on 1 November 
2007. He was transferred to the USAR Control Group (Reinforcement or Individual 
Ready Reserve (IRR)).  

	h.  On 26 August 2008, he completed an AHRC Form 4145 and elected to remain a 
member of the IRR. He also acknowledged he understood while assigned to the IRR he 
was subject to mobilization.  

	i.  He entered active duty on 6 June 2009 and served in Afghanistan from 13 June to 
18 September 2009. He was honorably released from active duty on 3 October 2009, 
and he was transferred to the USAR Control Group (Reinforcement).  

	j.  He previously provided a DA Form 3349 (Physical Profile), dated 15 June 2009, 
showing he received a permanent profile for post-traumatic stress disorder (PTSD) and 
hearing loss. He was assigned a 2 rating in the "H" (Hearing) factor and a level 3 rating 
in the "S" (Psychiatric) factor of his PULHES. The profiling officer indicated the applicant 
needed a MOS Medical Retention Board (MMRB) based on his permanent profile with 3 
rating in his PULHES. The profiling officer signed and dated this form, but the senior 
profiling officer/approval authority did not sign, date, or approve the profile.

	k.  He was honorably discharged from the USAR on 30 November 2015 by Orders 
D-10-520594, published by the U.S. Army Human Resources Command, in accordance 
with Army Regulation (AR) 135-175 (Separation of Officers).  

	l.  On 8 December 2015, he petitioned this Board to correct his records and show he 
was medically retired. The Board requested and the Army Review Boards Agency 
senior medical advisor reviewed the applicant’s case for alleged medical condition(s) 
that may have warranted separation through medical channels, or any medical 
condition(s) not considered during medical separation processing. The medical advisor 
rendered an advisory opinion on 2 March 2017, stating: 

		(1)  The applicant met medical retention standards for shoulder pain, knee pain, 
ankle pain, back pain, osteoarthritis, hearing loss/tinnitus, hyperlipidemia, prostate 
hypertrophy, history of mild TBI/concussion, history of renal stones, history of Gilbert 
syndrome in accordance with AR 40-501, Chapter 3, and AR 635-40 (Physical 
Evaluation for Retention, Retirement, or Separation) applicable at the time.

		(2)  The applicant's medical conditions were duly considered during medical 
separation processing. A review of the available documentation found no evidence of a 
medical disability or condition which would support changing the reason for discharge in 
this case.  

		(3)  The applicant's physical or behavioral impairments apparently did not have 
an impact on his ability to carry out his duties or affect the status of physician medical 
privileges as a family physician in accordance with AR 635-40, paragraph 5-6d(1).

	m.  The applicant responded to the advisory opinion on 7 March 2017 and provided 
a practitioner's review, three officer evaluation reports, and a statement from a 
commanding officer at the Georgia ARNG. He contended that his failure to attain 20 
"good" years as not a choice; he was aggressively trying to get back into a unit and 
redeploy to Afghanistan; he was told his disability rating was too high on several 
occasions; he tried multiple times to get into a slot; and he tried everything he could to 
complete 20 qualifying years of service for military retirement.

	n.  On 27 March 2018, after considering his evidence, the advisory opinion, and his 
response, the Board unanimously voted to deny his request as there was insufficient 
evidence to support it.

	o.  In July 2018, he requested reconsideration of the previous Board’s decision and 
asked for a medical retirement. On 2 April 2020, after reviewing the application and all 
supporting documents, the Board determined relief was not warranted. Based upon the 
available documentation showing the applicant did not have any medical condition or 
injury which failed retention standards, the Board concluded there was insufficient 
evidence of an error or injustice which would warrant a change to the applicant’s 
narrative reason for separation.

4.  The law (10 USC, 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%, and 
(10 USC, section 1203) the physical disability separation of a member who has less 
than 20 years of service and a disability rating of less than 30%.  

5.  The law (10 USC sections 12731-12738) authorizes retired pay for Reserve 
component military service. A Reserve Soldier must complete a minimum of 20 
qualifying years of service to be eligible for retired pay at age 60. The term "good years" 
is an unofficial term used to mean years in which 50 or more retirement points are 
earned during each year and which count as qualifying years of service for retirement 
benefits at age 60.

6.  MEDICAL REVIEW:

The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant’s medical records in the Armed Forces Health Longitudinal 
Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following 
findings and recommendations: Documentation suggests the applicant was medically fit 
at the time of his 2009 discharge from active-duty service. However, prior to 
deployment, in June 2009, the applicant had a profile reflecting a S3, permanent 
limitations for PTSD, and found non-deployable with notation the applicant required a 
Medical Retention Board. Records are void of a Medical Retention Board and related 
findings. While the applicant still deployed, potentially due to the VA provider noting the 
applicant’s PTSD was stable, it is this advisor’s opinion that should not be used in lieu of 
a Medical Retention Board. In an abundance of caution and given the statement the 
applicant required a Medical Retention Board with no confirmation it occurred, a referral 
to the Disability Evaluation System (DES) is warranted.

    a.  The applicant was discharged from the USAR on 30 November 2015 under AR 
135-175, Separation of Officers, with an Honorable characterization. Previously, the 
applicant had several terms of service to include 06 June to 03 October 2009 with an 
Honorable characterization. The applicant is requesting reconsideration for medical 
retirement. While the applicant is unclear which discharge he is requesting medical 
retirement for, statements suggest the applicant is referencing his 2009 discharge.

    b.  The applicant previously applied to the ABCMR in 2016 & 2018 for the same 
request. In 2017, a medical advisory was obtained which indicated he met medical 
retention standards for asserted physical and behavioral health conditions at the time of 
discharge. Accordingly, the Board denied the applicant’s request for medical retirement.

    c.  The electronic packet contained Officer Evaluation Reports (OER) from November 
2004 to June 2005, September to December 2006, and June to October 2009.  All 
OERs rated the applicant as Outstanding, Best Qualified, and Must Promote. 

    d.  The electronic packet contained a June 2012 Professional Reference for 
Credentialing Memorandum indicated the reference had “the utmost confidence” in the 
applicant’s abilities and would be an asset. Moreover, the accompanying checklist 
reflects the reference denied the applicant had a known mental of physical health 
problem that would affect the applicant’s ability to perform their job.

    e.  Active-duty hard copy medical records include multiple physicals from 1991 to 
2006 which are void of behavioral health symptoms, conditions, or treatment with a 
profile reflecting S1; the applicant did not have psychiatric limitations. A November 2005 
TBI questionnaire notes a diagnosis of PTSD with referral for clearance. A subsequent 
2006 physical notes the applicant was qualified for service with a S1. However, it is 
unclear who assessed and cleared the applicant.

    f.  Active-duty hard copy medical records contain a November 2008 self-assessment 
in which the applicant reported the VA diagnosis of PTSD with Prozac prescribed. The 
applicant indicated he was not on a profile. The physician found the applicant 
“functional” and without need for a profile. A November 2008 pre-deployment Periodic 
Health Assessment (PHA) reflects the applicant endorsed PTSD and depressive 
symptoms. The provider noted VA treatment for PTSD and requested a letter from the 
treating psychiatrist. The provider submitted a profile with a S3, the applicant could not 
deploy as he had psychiatric limitations. A June 2009 profile maintained the S3 noting 
the applicant was not cleared and required a Medical Retention Board. Documentation 
is void of a Medical Retention Board, or related records, to clarify whether the applicant 
was appropriately assessed and determined to be medically fit for duty.  There are VA 
notes during that time which indicate the applicant was “stable” and may have been the 
basis for determining he was medically fit and cleared for deployment.

    g.  Active-duty electronic medical records reflect one medical encounter while 
deployed for lower back pain; the applicant was not seen by behavioral health.  The 
records contain a September 2009 post-deployment screening indicated the applicant 
reported trauma symptoms noting he was already established with the VA and claims 
pending. The applicant indicated his concern was for his daughter who was not 
attending school secondary to her concern for him. 

    h.  The applicant is ???% service connected for ???. In February 2007, the applicant 
went to behavioral health reporting depression and anger. The provider diagnosed 
PTSD nothing the applicant was “troubled” about the diagnosis due to it offending him, 
believing PTSD was a normal response, and desire to re-enlist although concerned a 
50+ should not be “kicking doors down with a bunch of younger cohorts.” The applicant 
had been running a hyperbaric chamber and wrote a related text. In March, the 
applicant saw a therapist with diagnosis of Depressive Disorder NOS. The applicant 
started and continued medication management.

    i.  In April 2009, he saw his provider who noted the applicant’s PTSD was “stable.”  In 
October 2009, he saw his VA provider noting he needed to leave service as he couldn’t 
go back. In November, he noted he was working as an ER physician. In September 
2010, the applicant returned for a refill of stimulants noting he wanted to deploy. 

    j.  In March 2011, the applicant had a Compensation and Pension (C&P) exam which 
noted a prior exam in 2007 diagnosing PTSD with depression and anxiety, Alcohol 
Abuse, and Mixed Personality Disorder with schizoid and explosive features. The 
provider diagnosed PTSD with Major Depressive Disorder (MDD). The applicant 
continued with medication management.

    k.  In May 2015, the applicant reported although he was working, he continued to 
have intrusive memories, nightmares, reactivity, avoidance, negative beliefs and 
emotional state, detachment from others, loss of interest, hypervigilance, and 
exaggerated startle. In August, the applicant reported he was still working as an ER 
doctor and “work is fair. Socially, feels he’s doing ok.” In December, after his final 
discharge from service, the applicant reported “things were going okay,” but was having 
some difficulty since he “found out he isn’t eligible for full military retirement.”  The 
applicant indicated he stopped Prozac the month prior resulting in a return of 
nightmares. The applicant reported improvement in motivation, depression, and 
concentration with stimulants. The applicant held diagnoses of PTSD and MDD.

    l.  In November 2016, the applicant had a neuropsychological evaluation with the 
provider noting other than diminished interest in activities outside of work, he denied 
overt symptoms, history of mental health treatment, or related concerns. The applicant 
stated he loved serving and had difficulty coping with “forced separation” for medical 
reasons in 2009. The provider noted frequent job turnover due to emotional lability 
related to PTSD. The applicant was diagnosed with PTSD and MDD with cognitive 
functioning intact; he was in the high average range.

    m.  In June 2017, the applicant went to behavioral health, his employer wanted him in 
treatment as a condition of his employment. The applicant was diagnosed with PTSD, 
MDD, and Panic Disorder. In August, the applicant started trauma treatment; however, 
he discontinued in December although maintained medication management. In 2018, 
the applicant started non-VA care which he continues.

BOARD DISCUSSION:

Board members thoroughly reviewed the applicant's statement, supporting evidence, 
and the service record. The Board noted that the evidence suggests the applicant was 
medically fit at the time of his 2009 release from active-duty service. However, prior to 
deployment, in June 2009, he had a profile reflecting a S3, permanent limitations for 
PTSD, and found non-deployable with notation the applicant required a Medical 
Retention Board. The Board noted his record is void of a Medical Retention Board and 
related findings. The Board reviewed the medical advisory opinion and agreed that in an 
abundance of caution and given the statement the applicant required a Medical 
Retention Board with no confirmation it occurred, based upon the preponderance of the 
evidence, the Board agreed the applicant’s record should be referred to the Office of the 
Surgeon General for medical evaluation consideration, with all relief dependent upon a 
final medical determination.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant amendment of 
the ABCMR's decision in Docket Number, on 27 March 2018 and, on 2 April 2020. As a 
result, the Board recommends that all Department of the Army records of the individual 
concerned be corrected by referring his records to The Office of the Surgeon General 
for review to determine if he should have been discharged or retired by reason of 
physical disability under the Legacy Disability Evaluation System (DES).  

	a.  In the event that a formal physical evaluation board (PEB) becomes necessary, 
the individual concerned will be issued invitational travel orders to prepare for and 
participate in consideration of his case by a formal PEB.  All required reviews and 
approvals will be made subsequent to completion of the formal PEB.  

	b.  Should a determination be made that the applicant should have been separated 
under the DES, these proceedings will serve as the authority to void his administrative 
separation and to issue him the appropriate separation retroactive to his original 
separation date, with entitlement to all back pay and allowances and/or retired pay, less 
any entitlements already received. 


2.  The Board further determined that the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains changing his type of discharge without evaluation under the 
IDES. 

		  
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.  Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to 
perform their military duties because of a physical disability. The unfitness must be of 
such a degree that a Soldier is unable to perform the duties of his/her office, grade, 
rank, or rating.  

	a.  Paragraph 5-14c (Medical fitness standards for deployment and certain 
geographical areas) states Reserve Component (RC) Soldiers not on active duty, who 
do not meet medical retention standards are referred for a fitness determination in 
accordance with paragraphs 9–10 (USAR) and 10–26 (NGB).  Soldiers (RC or Active 
Army) with a permanent 3 or 4 in the physical profile who meet or might meet medical 
retention standards must be referred to an MMRB to determine if they are world-wide 
deployable (or be granted a waiver according to AR 600–60 (Physical Performance 
System)). However, Soldiers returned to duty by an MMRB or PEB, retained in the RC 
under paragraphs 9–10 or 10–26, or Soldiers with temporary medical conditions may 
still have some assignment/deployment limitations that must be considered before a 
decision is made to deploy.

	b.  AR 40-501 (Standards of Medical Fitness), paragraph 7–8 (Profiling reviews and 
approvals) states permanent "3" or "4" profiles require the signatures of 2 profiling 
officers, one of which is a physician approving authority (unless the provisions of 7–8f 
apply). (Permanent profiles of "3" or "4" for the Individual Ready Reserve are valid with 
only one signature if signed by the U.S. Army Human Resources Command (HRC) 
Surgeon or his/her designee.)  Temporary or permanent profiles of "1" or "2" require the 
signature of one profiling officer.  

2.  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%, and 
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%.  
Section 1212 provides that a member separated under section 1203 is entitled to 
disability severance pay.

3.  Sections 12731 through 12738 of Title 10, U.S. Code, authorize retired pay for 
Reserve component military service.  Under this law, a Reserve Soldier must complete 
a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  The 
term "good years" is an unofficial term used to mean years in which 50 or more 
retirement points are earned during each year and which count as qualifying years of 
service for retirement benefits at age 60.

4.  Section 1556 of Title 10, United States Code, 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)	 AR20220000535


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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