IN THE CASE OF: BOARD DATE: 14 February 2023 DOCKET NUMBER: AR20220003392 APPLICANT REQUESTS: * in effect, duty-related physical disability retirement in lieu of non-duty related physical disability separation and transfer to the Retired Reserve * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Privacy Act Release * self-authored statement * State of Ohio Adjutant General’s Department memorandum, 1 October 2020 * email correspondence, October 2020 * Ohio Army National Guard (OHARNG) memorandum, 8 November 2020 * State of Ohio Adjutant General’s Department memorandum, 16 December 2020 * OHARNG Army Element Joint Force Headquarters Orders 000914978, 5 January 2021 * email correspondence, January 2021 * ARNG Current Annual Statement, 27 January 2021 * OHARNG Medical Detachment Ohio Orders 0000914978.01, 1 February 2021 * National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service), 1 February 2021 * OHARNG Medical Detachment Ohio Orders 000965248, 1 February 2021 * Ohio National Guard Office of the Inspector General letter, 5 February 2021 * two State of Ohio Adjutant General’s Department memoranda, 8 February 2021 * email correspondence, February 2021 FACTS: 1. The applicant states: a. He is requesting that his 15-year retirement be changed to a medical retirement. This should be corrected because the process was mishandled. He was never advised of a request to attend a Physical Evaluation Board (PEB) or advised of the difference between the Medical Evaluation Board (MEB) and a PEB. He was not advised during this process that only a PEB can find him unfit for duty and the MEB can only determine his eligibility to reenlist. b. Had he been properly informed and elected to go to the PEB, he would have either received a medical retirement or reached his 20th year of service for retirement eligibility. He was not properly counseled or informed about the different paths and did not attend any out-processing or records review, even though the paperwork stated these needed to be schedule through his unit. His unit told him these were unnecessary and that he didn’t need to attend them when he inquired about scheduling. c. He had no communication or counseling with his unit commander or first sergeant throughout the process and had no direct communication with the Medical Detachment or anyone at the State during the process. Throughout the entire process, he made it clear he was close tohis 20-year mark and wanted to ensure that he retired properly. He requested to rescind his decision while he was still in the service, but was told it was too late; he had made his decision, the paperwork was signed, and his transfer orders couldn’t be changed. d. Additionally, his NGB Form 22, dated 6 months after his retirement, indicates “Soldier Not Available to Sign,” but he was never asked to sign. It also states he declined copies of the form with his initials, but the form states he was unavailable. This decision was not made by him, but for him without being contacted or requested. e. He served in the military since June 2001, when he served on active duty in the U.S. Marine Corps (USMC) until June 2006. He then joined the OHARNG and served there until 2 February 2021. He was retired due to a medical condition that was discovered while training for his third deployment in 2019. He was sent home in September 2019 and the medical separation process was stared. f. He was then placed on a “dead man’s profile,” which kept him from participating in any field training or drills that were not home station drills. He was not provided options to make up these drills or obtain the points that he would miss by not attending them. Throughout the entire process, he made his concerns known about being close to his 20-year retirement and that he didn’t want to miss out on that. g. In November 2020, he was presented with documents to sign, but they were never explained and he wasn’t ever fully advised about what the result of each path would be. The documents stated he was to schedule his out-processing with his unit; which was never schedule because he was told he didn’t need to go through that process, which is a process that every military member goes through prior to leaving the military. h. After signing the documents, he reached out to Soldier counsel in November 2020 and spoke to a lawyer with Soldier counsel January 2021. They advised him to request that the paperwork be rescinded and that he would like to elect to go to a PEB, which he did request. He was told it was too late and that it was already processed, even though he reached out 2 or 3 weeks prior to his transfer date to the Retired Reserve. He was then retired on 2 February 2021. i. He reached out to the Judge Advocate General’s (JAG) and the Inspector General (IG) because he learned that he was only given a 15-year retirement, due to missing his 20th year of service by 21 points, which he was never informed of at any point in the process. Everywhere he turned, even prior to his retirement, he was told there was nothing that could be done. He then reached out and filed an IG complaint, submitting everything he was asked to submit, but shortly thereafter his emails stopped being responded to. j. Since he only received a 15-year retirement for medical reasons, not a medical retirement or a full 20-year retirement [for length of service], he missed out on benefits he would be eligible for had he gotten to his 20th year or received a full medical retirement. He had no review to make sure that any of his information was accurate prior to being retired. He only received an email containing his retirement letter and letters signed by his commander. He has not received any other documents or a DD Form 214. He spoke with no one from the Medical Detachment, his commander, or any senior leadership throughout the process. After 2 deployments with the OHARNG and giving nearly 20 years of his life, he has been ignored and redirected every time he has reached out for help. No one saw any red flags or felt like it didn’t even make sense that a Soldier sitting at 21 points away from a 20-year retirement would be content with a 15- year retirement. He is seeking to have the process reviewed and his retirement updated to a medical retirement versus a 15-year retirement. 2. The applicant enlisted in the USMC on 3 December 2001 and was honorably released from active duty and transferred to the USMC Reserve due to completion of required active duty after 4 years, and 6 months on 2 June 2006. 3. The applicant enlisted in the OHARNG on 6 July 2006 and was awarded the Military Occupational Specialty (MOS) 19D (Cavalry Scout). 4. The applicant was ordered to active duty as a member of his OHARNG unit on 2 January 2008, in support of Operation Iraqi Freedom, with service in Kuwait and Iraq from 4 April 2008 through 15 December 2008. He was honorably released from active duty after 1 year and 9 days of net active service this period on 10 January 2009, due to completion of required active service and returned to his OHARNG unit. 5. The applicant was ordered to active duty as a member of his OHARNG unit on 11 September 2011, in support of Operation Enduring Freedom, with service in Afghanistan from 6 November 2011 through 2 November 2012. He was honorably released from active duty after 1 year, 2 months, and 9 days of net active service this period on 19 November 2012, due to completion of required active service and returned to his OHARNG unit. 6. A DA Form 3349-SG (Physical Profile Record), shows on 2 November 2019, the applicant was given a temporary physical profile which maintained a rating of “1” in all factors, due to having had a blood test which is positive for hereditary angioedema (swelling under the skin surface), after complaints of hands and body swelling. He was scheduled to see and immunobiologist for his medical issue in January 2020. He was unable to participate in the Army Physical Fitness Test (APFT) or any functional activities, until an anticipated availability date of 1 March 2020. 7. A Standard Form 513 (Consultation Sheet), dated 20 July 2020, shows the following: a. The OHARNG Medical Detachment requested on 20 July 2020, that the applicant be seen for a follow-up evaluation for hereditary angioedema, type 1 due to 8-10 swelling episodes since his January 2020 visit. b. The Consultation Report shows the applicant was examined on 20 July 2020 and diagnosed with hereditary angioedema, type 1. His prognosis shows the condition is lifelong, incurable, but controllable with medication and that he is always at risk for swelling episodes. c. The treatments include avoid physical trauma, Icatibant prescription for swelling, and, to try to obtain Lanadelumab (antibody medicine) for maintenance therapy d. The limitations show the applicant should have no physical trauma to the body, cannot carry a heavy pack, no drills, no exercises, no simulations. It was not advisable that he deploy to an austere environment. 8. A DA Form 7809 (Summary of Care by Non-Military Medical Provider), dated 24 July 2020, shows the following: a. The applicant was seen by a non-military medical provider on 20 July. He was at that time receiving Department of Veterans Affairs (VA) disability benefits for post- traumatic stress disorder (PTSD), tinnitus, left shoulder, and right knee. b. He was seen for a follow-up assessment of his hereditary angioedema, type 1. This is a genetic condition which has been present since birth and has no cure. He had several swelling episodes since his last visit in January 2020 which were caused by physical trauma to the body. He had partial relief of one episode with the use of Icatibant. c. Low C1 esterase inhibitor level has been documented on several occasions. The only functional activities he could participate in were lifting/carrying a maximum 3 pounds, and standing with a limitation of 20 minutes. He could not perform the APFT events. His functional and APFT limitations were permanent and he was to follow-up every 3-6 months. d. The applicant was diagnosed with hereditary angioedema, type 1, based on his clinical symptoms and abnormal lab tests. This condition is genetic, has been present since childhood, and has no cure. The predominant symptom is uncontrolled swelling that can affect any body part. The principal trigger is physical trauma to the body. The swelling can affect internal organs and even lead to death by asphyxiation if the upper airway swells. The swelling episodes are generally painful and can be debilitating. In the midst of a swelling episode, the applicant would not be able to carry out his duties as a Soldier. The examining doctor recommended that he not participate in any drills, exercises, simulations, or other activities that may result in physical trauma to his body. 9. A second DA Form 3349-SG shows on 7 May 2020, the applicant was given a temporary physical profile which maintained a rating of “1” in all factors, due to a diagnosis of hereditary angioedema. He was unable to participate in the APFT or any functional activities, until cleared by a healthcare provider, with an anticipated availability date of 6 August 2020. 10. A third DA Form 3349-SG shows on 4 August 2020, the applicant was given a permanent physical profile rating of “3” in factor P (Physical capacity or stamina), due to a diagnosis of hereditary angioedema. Per the healthcare provider, the condition is permanent and he would remain unable to participate in the APFT or any functional activities. 11. A fourth DA Form 3349-SG shows on 12 September 2020, the applicant was again given a permanent physical profile rating of “3” in factor P, due to a diagnosis of hereditary angioedema. Per the healthcare provider, the condition is permanent and he would remain unable to participate in the APFT or any functional activities. 12. A State of Ohio Adjutant Generals’ Department memorandum, dated 1 October 2020, notified the applicant of his non-duty related medical disqualification and shows the following: a. The Office of the State Surgeon conducted a comprehensive and detailed review of the applicant’s medical records; this review revealed a condition which medically disqualifies him from military service. He has been referred to the Disability Evaluation System (DES) under the non-duty related process because he no longer met retention standards per Army Regulation 40-501 (Standards of Medical Fitness). b. He was advised to submit the enclosed acknowledgment of medical disqualification and separation receipt. He should choose a fit for duty determination only by the non-duty related PEB under the DES or acknowledge he would be involuntarily separated/retired. This receipt would be submitted through his chain of command to the G1 Health Services Section by the 15 November 2020 suspense. 13. The applicant provided copies of email correspondence, dated October 2020, wherein the G1 Health Services Section OHARNG is asked about the non-duty related disqualification memorandum pertaining to the applicant. The question is asked if the applicant will lose his opportunity for a 20-year retirement and/or remain eligible for Tricare as he had over 18.9 years’ time in service at that time. The email response is not available for review. 14. An OHARNG memorandum, dated 8 November 2020, shows the applicant acknowledged the following: a. He understood this was an acknowledgement of medical disqualification and separation for a non-duty related medical condition. He acknowledged he no longer met medical retention standards in accordance with Army Regulation 40-501. b. He understood that per Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), he was ineligible for assignment or placement on orders or to be scheduled for or attend training for which the U.S. Army Training and Doctrine Command was the proponent. c. He understood he was required to attend inactive duty training within the parameters of his permanent profile until the date of his separation. d. He declined entry into the non-duty related PEB for a fit for duty determination. e. He understood he would be involuntarily separated from the OHARNG within 90 days of the date of this acknowledgment. f. He understood he had at least 15 years of service, therefore his involuntary separation from the OHARNG would result in his transfer to the Retired Reserve. g. He understood he must coordinate with his unit to schedule and attend the OHARNG centralized out-processing, complete central issue facility (CIF) turn-in, and complete all administrative items covered in the out-processing checklist prior to separation. h. He understood he must still fulfill his duty and attend drill up until he had either completed the non-duty related PEB process or his effective separation date. i. He retained a copy of the notification of non-duty related medical disqualification, the DA Form 3349, and a copy of this completed endorsement. j. The form is also signed by “counsel”, Staff Sergeant (SSG) on 8 November 2020, showing the applicant’s current expiration term of service date was 5 July 2022, and that having been advised by SSG of the basis for his medical disqualification status and its effects, the choices available to him, and the process of those choices, the applicant personally made the choices indicated in the above endorsement. 15. A State of Ohio Adjutant Generals’ Department memorandum, dated 16 December 2020, shows on 8 November 2020, the applicant acknowledged he would be transferred to the Retired Reserve because he was found unfit for retention. He would be separated from the OHARNG and transferred to the Retired Reserve per Army Regulation (AR) 135-178 (ARNG and Reserve Enlisted Administrative Separations) chapter 14-1k(1)(c). The medical retention disqualification guidance is in accordance with National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35l(8). His separation and transfer from the OHARNG to the Retired Reserve would be effective 1 February 2021. 16. The applicant provided copies of email correspondence dated 12 January 2021, wherein he asked an individual in his OHARNG unit if the separation process could be reversed. The applicant was informed that the process was begun in October and closed out on 16 December 2020 and once the election to separate was made and the action completed, it could not be undone, but he would reach out to Health Services to verify. 17. An ARNG Current Annual Statement, dated 27 January 2021, shows the applicant completed 19 years of creditable service for retired pay. 18. OHARNG Medical Detachment Ohio Orders 000965248, dated 1 February 2021, transferred the applicant to the U.S. Army Reserve (USAR) Retired Reserve, under the provisions of Army Regulation 635-40, effective 2 February 2021. 19. An Ohio National Guard Office of the Inspector General letter, dated 5 February 2021, acknowledged the applicant’s request for assistance from the IG concerning the process of his separation from the OHARNG. The IG office would conduct a thorough inquiry into his request, and he would receive a final notification once complete. 20. A State of Ohio Adjutant General’s Department memorandum, dated 8 February 2021, shows the following: a. The applicant was notified of his eligibility for retired pay for non-regular service (15 years). He completed at least 15 years, but fewer than 20 years of qualifying service and would be eligible for retired pay upon his application at age 60 unless he qualified for a reduced eligibility age in accordance with Title 10, U.S. Code, section 1273 1(f). b. He was in the Selected Reserve, completed at least 15, but less than 20 years of qualifying service on or after 1 October 1991. He no longer met the qualifications for membership in the Selected Reserve solely because he was unfit due to a physical disability and the disability was not the result of his intentional misconduct, willful neglect, or willful failure to comply with standards and qualification for retention established by the Secretary of the Army and was not incurred during a period of unauthorized absence. c. He was discharged from the ARNG and unless he requested transfer to the Retired Reserve, was also separated as a Reserve of the Army. He was not entitled to earn additional retirement points toward non-regular retired pay and retired pay for non- regular service will be based only on retirement points earned prior to separation from an active status. 21. A second State of Ohio Adjutant General’s Department memorandum, likewise, dated 8 February 2021, shows the following: a. The applicant was again notified of eligibility for retirement pay at age 60 (15 Year Medical Letter). On behalf of the Adjutant General of the State of Ohio, the applicant was thanked for his many years of faithful service to his State and nation. This letter certified the applicant’s eligibility to receive retired pay upon application at ag 60. b. He was advised to make a Reserve Component Survivor Benefit Program election and submit his election within 90 days. 22. The applicant provided additional email correspondence, dated February 2021, wherein he makes contact with the OHARNG IG Office regarding his request to rescind his separation decision. The OHARNG IG response to the applicant is not in his available records for review. 23. An NGB Form 22, issued on 2 August 2021, shows the applicant was honorably discharged and retired to the U.S Army Reserve (USAR) Control Group (Retired Reserve) on 1 February 2021, under the provisions of National Guard Regulation 600- 200, paragraph 6-35l, due to medical disqualification. The form shows the applicant declined copies of his NGB Form 22 and was not available for signature. He was credited with the following service: * 14 years, 6 months, and 27 days of net service this period * 6 months and 8 days of prior Reserve component service * 4 years and 6 months of prior active Federal service * 19 years, 7 months, and 5 days of total service for pay * 19 qualifying years of total service for retired pay 24. There is no evidence of record that applicant’s credited service for retired pay is 15 years. The evidence of record shows the applicant is credited with 19 years of service for retired pay and that once his retired pay is initiated at the age of 60, will be based on 19 years of service. 25. In the adjudication of this case, and advisory opinion was provided by the NGB, dated 30 January 2023, showing the following: a. The applicant requested a review of his discharge and transfer to the Retired Reserve and that he be allowed to reach 20 years of creditable service for retired pay. The NGB recommended disapproval. b. The applicant stated he was erroneously discharged and transferred to the Retired Reserve with less than 20 years of service from the ARNG after being found unfit for duty due to his hereditary angioedema type 1 diagnosis. He claims he was never properly counseled on the difference between the state medical board and the PEB process, otherwise he would have elected to have his case forward to the PEB for a fitness decision, and possible medical retirement. c. The applicant claims his hereditary angioedema type 1 condition is service connected and therefore, his discharge should be reconsidered, and forward to the PEB for a possible medical retirement. (1) Army Regulation 635-40, paragraph 5-11(d) states that any hereditary or genetic disease will be evaluated to determine whether clear and unmistakable evidence demonstrates the disability existed before the Soldier’s entrance on active duty and was not aggravated by the current period of active duty. (2) Additionally, any medical disability determined to have been incurred prior to entry on their current period of active duty, any aggravation of that disease, incurred during the Soldier’s current period of active duty, beyond that determined to be due to natural progression, will be determined to be service aggravated. d. A review of Medical Electronic Data Care History and Readiness Tracking (MEDCHART), the Soldier’s Treatment Record (STR), and the Armed Forces Health Longitudinal Technology Application (AHLTA) was conducted by the National Guard Clinical Service Branch. Several profiles were found annotating the Soldier’s condition, to include a permanent profile, however no line of duty (LOD) information was found, nor were there any medical notes showing a natural progression of his condition that would be considered service aggravated per Army Regulation 635-40. e. Based on the evidence presented and collected, it is the opinion of this office that the applicant’s request to have his discharge and transfer to the Retired Reserve rescinded and changed to a medical retirement be disapproved. Additionally, we find that his request to be able to reach 20 years of creditable service should also be disapproved. f. Medical information collected does show that the Soldier had a P3 profile for hereditary angioedema which is one of the requirements to be entered into the Integrated Disability Evaluation System (IDES), however no LODs were found associated with the Soldier’s genetic condition that show a natural progression of the condition. Additionally, there are no orders showing that the Soldier was on active-duty status beyond 30 days per Army Regulation 635-40, and therefore disqualified from the IDES process and cannot be medically retired. g. Information provided by the OHARNG shows that’s that there was an error which occurred when the Soldier attempted to rescind his election on the acknowledgement of Medical Disqualification and Separation, when the OHARNG failed to rescind his election due to email issues. This error disallowed the Soldier to have his case review by the PEB as a Non-Duty Medical case, which again would not provide the Soldier with a medical retirement. The Soldier did have 19 years of creditable service for retire pay and therefore received a 15-year notice of eligibility letter. A 20 year of notice of eligibility for retirement pay would not provide the Soldier anything different then what he already has and therefore we find no reason to recommend approval of his request to acquire a 20-year notice of eligibility memo. 26. On 8 February 2023, the applicant was provided a copy of the NGB advisory opinion and given an opportunity to respond and provide comments. The applicant responded on 14 February 2023, providing the following: * State of Ohio, Adjutant General’s Department Orders 37-232-0032, dated 20 August 2019 * amendment to those orders, dated 26 September 2019 * copies of email correspondence, dated January 2021, which was previously submitted and discussed above * copy of OHARNG memorandum, dated 8 November 2020, which was previously submitted and discussed above * statement of rebuttal a. The applicant states he disagrees with the advisory opinion submitted by the NGB regarding his case. Also, prior to knowing he had hereditary angioedema, he had swelling while at the premobilization cite, and he was given a physical profile for 3-4 days and should be documented, as he went to sick call for it. He would be able to provide witnesses to account for this as well. b. Hereditary angioedema is the reason he was released from active duty (REFRAD); see his attached active duty orders. His orders were initially for 400 days, but were amended to 30 days. There should also be an LOD along with his REFRAD documentation in MEDPROS. Prior to this incident, there was no clear or unmistakable evidence that demonstrated the disability existed before he entered active duty and was not aggravated by that then current period of active duty. c. Per Army Regulation 635-40, paragraph 4-4 (Waiver of Disability Evaluation System (DES)), in certain circumstances, Soldiers may waive referral to the DES process. The Physical Evaluation Board Liaison Officer (PEBLO) must inform the Soldier about the DES process, their right to a PEB, and the potential benefits of remaining in an active duty or active Reserve status for purposes of completing the DES process. The Soldier will be advised that they have the right to consult with a Soldiers MEB Counsel (SMEBC) prior to waiving referral to the MEB or informal PEB. The Soldier must request a waiver in writing and such a request, or an affidavit, must attest that the Soldier has received the information described above and declines referral to the PEB. The waiver must be filed in the Soldier’s health records and official personnel record. Waiver requests are authorized in the circumstances listed below: (1) The Soldier’s conditions existed prior to service (EPTS). The Soldier must be on continuous active duty for more than 30 days. The MEB must provide clear and unmistakable evidence that the Soldier’s medical condition(s) that do not meet medical retentions standards are EPTS and did not permanently worsen or progress beyond natural progression while on active duty (specifically were not service aggravated). (2) The DES process would likely require extension past the date of the Soldier’s ETS and the Soldier does not consent to retention. * Soldiers cannot be involuntarily retained past ETS even though they may have a remaining service obligation * Soldiers of the Reserve Component on active duty under a call to duty of more than 30 days may continue the DES process upon REFRAD; they must maintain a Ready Reserve status, sign a waiver declining retention on active duty * Soldiers must be counseled that coverage of unfitting non-service connected disability with will not apply when REFRAD occurs before the case is received at the PEB (3) The DES process would likely require extension past a Soldier’s established retirement date (other than retirement under the Temporary Early Retirement Authority) and the Soldier does not wish to delay retirement. d. He was never counseled per this paragraph of Army Regulation 635-40. Per the attached 8 November 2020 Acknowledgement of Medical Disqualification and Separation memorandum, the block that would advise him of the Soldier’s Counsel does not contain his initials because he wasn’t advised of that option. When he did go back over the paperwork and contacted them, they advised that he rescind his decision. Per the NGB, the OHARNG states an email issue is the reasoning whey they failed to rescind his election. However, he has the email (attached dated 12 January 2021) that he sent requesting the decision be rescinded and the response stating that his request would be submitted. He does not understand how the PEB would be a non-duty related medical case, as this all began while on active duty order and was presented at his Periodic Health Assessment (PHA) immediately following his REFRAD. e. Per Army Regulation 650-40 [sic 635-40], paragraph 5-8 (Applicability of Title 10 U.S. Code 1201 through Title 10 U.S. Code 1203, adjudication of compensability under the provisions of Title 10 U.S. Code section 1201 through 1203 applies to the following: (1) Reserve Component Soldiers currently on an order to active duty specifying a period of more than 30 days (other than for training under Title 10 U.S. Code, section 10148(a) or as limited by Title 10 U.S Code, section 1206(a). (2) Reserve Component Soldiers in a REFRAD status who are referred to the DES for a disability incurred or aggravated when the Soldier was on an order to active duty specifying a period of more than 30 days. f. Regarding the 20-year notice of eligibility, had there not been an “email issue” and his decision was rescinded as per his request, he would have been required to drill, which would have added to his retirement points. There were also multiple drills he was told to not attend and given no options to make up these drills. The missed drills were not at his request, but on advisement of his leadership and those missed drills also resulted in missed retirement points. As previously stated, from the moment the REFRAD decision was made while he was on active duty, there was no counseling provided or anyone advising him of what was occurring, as per Army Regulation 635-40 should have transpired. Per multiple emails, he reached out requesting updates or information and the responses were limited or stated they reached out, but no other guidance was provided, despite the fact he promptly provided all requested documentation. g. The applicant provided State of Ohio Adjutant General’s Department Orders 37-232-0032, dated 20 August 2019, ordered the applicant to active duty in support of Operation Enduring Freedom (Spartan Shield) with reporting to the Fort Bliss, TX, Mobilization Station on 27 August 2019 for a period of active duty lasting 400 days. h. State of Ohio Adjutant General’s Department Orders 37-232-0032 (A2), dated 26 September 2019, amended above-referenced Orders 37-232-0032, to show the period of active duty was changed to 30 days in lieu of 400 days, reflecting the applicant was REFRAD within 30 days of his orders to active duty. 27. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting a referral to the Disability Evaluation System (DES), stating he was discharged without the benefit of a non-duty related physical evaluation board for his hereditary angioedema. From his self-authored letter: “I was retired due to a medical condition that was discovered while training for my 3rd deployment in 2019. I was sent home September of 2019 and the medical separation process was started ... After signing the document, I reached out to Soldier Counsel in November of 2020. I then spoke to a lawyer with Soldiers Counsel in January of 2021, they advised to request that the paperwork be rescinded, and I would like to elect to go to a PEB (Physical Evaluation Board), which I did request. I was told it was too late and that it was already processed, even though I reached out two or three weeks prior to my transfer date to the Retired Reserves. Since I only received a 15-year retirement for medical reason, not a medical retirement or full 20-year retirement, I missed out on benefits that I would be eligible for had I gotten to my 20th year or received a full medical retirement.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s Report of Separation and Record of Service (NGB Form 22) for the period of Service under consideration shows the former drilling Guardsman enlisted in the Army National Guard on 6 July 2006 and was discharged from the Ohio Army National Guard (OHARNG) on 2 January 2021 under the provisions of paragraph 6-35l(8) of NGR 600-200, Enlisted Personnel Management (25 March 2021): Medically unfit for retention per AR 40-501 (Standards of Medical Fitness). c. Orders published 1 February 2021 by the OHARNG show the applicant was transferred to the Retired Reserve effective 2 February 2021. d. The applicant was placed on a duty limiting permanent physical profile for type I hereditary angioedema on 4 August 2020. From the Medline Plus website of the National Library of Medicine: “Hereditary angioedema is a disorder characterized by recurrent episodes of severe swelling (angioedema). The most common areas of the body to develop swelling are the limbs, face, intestinal tract, and airway. Minor trauma or stress may trigger an attack but swelling often occurs without a known trigger. Episodes involving the intestinal tract cause severe abdominal pain, nausea, and vomiting. Swelling in the airway can restrict breathing and lead to life-threatening obstruction of the airway. About one-third of people with this condition develop a non-itchy rash called erythema marginatum during an attack. Mutations in the SERPING1 gene cause hereditary angioedema type I and type II. The SERPING1 gene provides instructions for making the C1 inhibitor protein, which is important for controlling inflammation. C1 inhibitor blocks the activity of certain proteins that promote inflammation. Mutations that cause hereditary angioedema type I lead to reduced levels of C1 inhibitor in the blood …” (https://medlineplus.gov/genetics/condition/hereditary-angioedema/#causes) e. The applicant’s condition is non-duty related because the Services view genetic diseases, conditions which are solely attributed to genetic defects, as having existed prior to service: The Soldier had the genetic disease before they entered the Service, and it is not a matter of if they will manifest the disease but only a matter of when they will manifest the disease. As such, these conditions are not duty related and therefore non-compensable. The exceptions to this policy are if the condition was permanently aggravated by military service or the Soldier has more than 8 years of active federal service and is currently on active duty. There is no evidence that either of these criterion were met in this case. f. The applicant was notified of his disqualification for this non-duty related medical condition, provided with his options, and made his elections on 8 November 2020 (pages 72-73 of the supporting documentation. By his handwritten initials, he acknowledged his “Medical Disqualification and Separation for a Non-Duty Related medical condition,” declined “entry to the NDR PEB for a Fit for Duty Determination,” and understood “that I will be involuntarily separated from the Ohio Army National Guard within 90 days of the date of this Acknowledgment.” g. On 8 February 2021, the applicant received his “Notification of Eligibility for Retired Pay for Non-Regular Service (15 Years)” 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. h. 10 U.S. Code § 12732 is titled “Entitlement to retired pay: computation of years of service.” As noted in the underlined phrase above, Reserve Component Soldiers retired with a 15-year notification of eligibility (NOE) under 10 USC § 12731b are retired “as having met the service requirements for years of service computed under 10 U.S. Code § 12732.” Thus, the non-regular retirement benefits are the same under 10 USC § 12731b and 10 USC § 12732. i. It is the opinion of the Agency Medical Advisor that a referral of his case to the DES for a nonduty related physical evaluation board is not warranted. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The applicant is requesting a medical retirement vice his transfer to the Retired Reserve with a 15-year letter, and that he be allowed to reach 20 years of qualifying service for retired pay at age 60. a. The documentary evidence shows the applicant had a medical condition that disqualified him for retention in the ARNG. He was informed of the medical disqualification, and he understood this was an acknowledgement of medical disqualification and separation for a non-duty related medical condition. He acknowledged he no longer met medical retention standards of AR 40-501. A non-duty related PEB (NDR-PEB) may be established where a MEB determines that a servicemember has a condition, not in the line of duty, that prohibits the member from performing their duties. The only determination that an NDR-PEB makes is a final determination of whether a non-duty related condition is unfitting for continued military service. b. By law (10 USC § 12731b) and regulation, Reserve Component members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement. A qualifying year of service for non-regular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points. The law further states that a member of the Selected Reserve who was medically disqualified for continued service in a Reserve Component could be considered as having met the service requirement and could be issued a Notification for Eligibility for Non-Regular Retired Pay at Age 60, 15-Year Letter, if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement. The evidence shows the applicant did not complete 20 qualifying years of service. He completed 19 years and was medically disqualified. That is why he was issued a 15- year letter. ? 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. c. Paragraph 4-34 (Reserve Component non-duty related process) describes the Reserve Component non-duty related process and policy. It affords Reserve Component Soldiers not on call to active duty of more than 30 days and who are pending separation by the reserve Component for non-duty related medical conditions to enter the Disability Evaluation System (DES) for a determination of fitness and whether the condition is duty-related. (1) A line of duty (LOD) investigation resulting in a finding of not in LOD is not required when it is clear that the disqualifying disability is non-duty related. For example, a Reserve Component Soldier’s disqualifying condition is an amputation that was incurred when the Soldier was not in a duty status. (2) Referral to the Reserve Component non-duty related process is upon the request of the Reserve Component Soldier. If the Soldier does not request referral, they are subject to separation for medical disqualification under Reserve Component regulations. (3) In the situation of a Reserve Component Soldier having multiple disqualifying conditions, if any one of the conditions was incurred or aggravated in the LOD, the Soldier is not eligible to be processed under the non-duty related process. d. Paragraph 5-8 (Applicability of Title 10 U.S. Code 1201 through Title 10 U.S. Code 1203), adjudication of compensability under the provisions of Title 10 U.S. Code section 1201 through 1203 applies to the following: (1) Soldiers of the Active Army (2) Reserve Component Soldiers currently on an order to active duty specifying a period of more than 30 days (other than for training under Title 10 U.S. Code, section 10148(a) or as limited by Title 10 U.S Code, section 1206(a). (3) Reserve Component Soldiers in a Release from Active Duty (REFRAD) status who are referred to the DES for a disability incurred or aggravated when the Soldier was on an order to active duty specifying a period of more than 30 days. e. Paragraph 5-10 (On active duty for more than 30 days) states, in accordance with Title 10 U.S. Code section 101 (d)(2), to be considered on active duty for more than 30 days, the Soldier must be called to active duty under an order that does not specify a period of 30 days or less. However, the provisions of Title 10 U.S. Code 1206 impact this definition for Reserve Component Soldiers who are called to active duty for more than 30 days but released within 30 days of commencing such period of active duty (see paragraph 5-15). f. Paragraph 5-11 (Presumption of sound condition for Soldiers on order to active duty specifying a period of more than 30 days) states the PEB will presume Soldiers, including reserve component Soldiers and recalled retirees on continuous orders to active duty specifying a period of more than 30 days, entered their current period of military service in sound condition when the disability was not noted at the time of the Soldier’s entrance to the current period of active duty. (1) The PEB may overcome this presumption if clear and unmistakable evidence demonstrates the disability existed before the Soldier’s entrance on their current period of active duty and was not aggravated by their current period of military service. (2) Any hereditary or genetic disease will be evaluated to determine whether clear and unmistakable evidence demonstrates the disability existed before the Soldier’s entrance on active duty and was not aggravated by their current period of military service. However, even if the disability is determined to have been incurred prior to entry on their current period of active duty, any aggravation of that disease incurred during the Soldier’s current period of active duty, beyond that determined to be due to natural progression, will be determined to be service aggravated. g. Paragraph 5-15 (title 10 U.S Code section 1207a and pre-existing conditions) states under the provisions of Title 10 U.S. Code section 1207a, a pre-existing condition is deemed to have been incurred while entitled to basic pay and will be so considered for purpose of determining whether the disability was incurred in the LOD when the following: (1) The Soldier is called to active duty for more than 30 days (other than for training) when the PEB determines that the Soldier is unfit. (2) A Reserve Component Soldier was not released within 30 days of their orders to active duty in accordance with Title 10 U.S. Code 1206a due to the identification of a pre-existing condition not aggravated by the current call to active duty. (3) The Soldier will have at least 8 years of active service. The 8 years of active service does not require a continuous 8-year period. 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. 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. 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 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. c. Reserve Component Soldiers who do not meet medical retention standards may request continuance in 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. d. Paragraph 9-12 states Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Reserve Component Soldiers with non–duty related medical conditions, MEBs are not required and cases are not sent through the PEBLOs (Physical Evaluation Board Liaison Officers) at the military treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USARC Regional Support Command or the U.S. Army Human Resources Command Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. 4. National Guard Regulation 600-200 (Enlisted Personnel Management) prescribes the criteria, policies, processes, procedures and responsibilities to classify, assign, utilize, transfer, separate and appoint ARNG and Army National Guard of the Unites States enlisted Soldiers. Paragraph 6-35 (Separation/Discharge from State ARNG and/or Reserve of the Army) section l, provides for the separation of Soldiers found medically unfit for retention per Army Regulation 40-501. 5. 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. 6. 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 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 a Reserve Component. 7. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 8. 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) AR20220003392 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1