IN THE CASE OF: BOARD DATE: 17 January 2023 DOCKET NUMBER: AR20220004577 APPLICANT REQUESTS: * reconsideration of his previous request for retirement based on physical disability * back pay and allowances retroactive to the date of his discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel's 12-page statement * Army Board for Correction of Military Records (ABCMR) Record of Proceedings, 20 April 2021 * Army National Guard (ARNG) and U.S. Army Reserve (USAR) personnel records * Periodic Health Assessment (PHA), 16 August 2011 * medical records, 6 September 2012 (4 pages) * MD Brain and Spine records * Department of Veterans Affairs (VA) medical records * PHA, 4 December 2013 * DA Form 3349 (Physical Profile), 18 November 2015 * Memorandum, subject: Line of Duty Determination, 10 April 2016 * DA Form 2173 [Statement of Medical Examination and Duty Status), 28 July 1997 * two DA Forms 1559 (Inspector General (IG) Action Request), undated/unsigned FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number on 20 April 2021. 2. The applicant defers to counsel. 3. In a 12-page statement, counsel states, in part: a. The applicant was suffering from numerous unfitting medical conditions prior to his separation from the service. Several individuals within his chain of command, as well as the appropriate medica l personnel, were aware of these potentially unfitting conditions. Per Army Regulation (AR) 40-501 (Standards of Medical Fitness), medical personnel were required to refer him to the appropriate Medical Evaluation Board (MEB) upon discovery of any medical condition which called into question his ability to perform the duties of this office, rank, grade, or rating. b. The applicant's referral to the Army Disability Evaluation System (DES) should have occurred in November 2013 when doctors noted that his spinal conditions were drastically increasing in severity; however, this clearly never occurred. While he was eventually referred to the DES several years later, the Army failed to timely complete his medical evaluation. Moreover, the failure of his assigned Physical Evaluation Board (PEB) Liaison Officer (PEBLO) to adequately advise him of his rights throughout the disability evaluation process constitutes ineffective assistance of counsel and provides further justification for grating the relief requested herein. The failure of the Army to comply with their own regulations constitutes negligence and a breach of duty. As a result of these egregious failures, he was erroneously separated from service without ever being evaluated for a medical disability retirement. As such, they respectfully ask this honorable Board to grant the relief requested herein. c. They contend that the applicant was suffering from numerous unfitting medical conditions prior to his separation from service that warranted his referral to the DES no later than 2013. His chain of command and military medical providers were clearly aware of the unfitting nature of his medical conditions, as he was placed on temporary and permanent profiles prior to his subsequent discharge. Moreover, he had undergone no less than five spinal surgeries which failed to resolve his symptoms prior to becoming a two time non-select for promotion to lieutenant colonel (LTC). Had he been timely referred to the DES, he would have been medically retired from service several years before he was eventually involuntarily separated, thereby rendering his non- selection moot. d. Moreover, the failure of the applicant's assigned PEBLO to properly advise him throughout the DES process once he was referred, albeit several years late, insofar as advising him of his right to request an extension of his orders in order to allow for the disability process to complete its course constitutes gross ineffective assistance of counsel and providers further justification for granting the relief requested herein. The failure to comply with these mandates discussed herein, as well as his numerous requests for referral to the DES, was a clear error which has deprived him of a medical disability retirement. Had these mandates been complied with, he would not have been placed in the position that he now finds himself in; having incurred numerous unfitting medical conditions during his 26 years of honorable service and being pushed out of the Army with nothing to show for it. e. On 20 February 2008, the applicant underwent a PHA. During the course of this assessment, it was discovered that he was suffering from unfitting medical conditions which did not meet retention standards. In or around 2011, he completed a PHA which indicated he was suffering from chronic back pain and had been diagnosed with "DDD [degenerative disc disease] L4-L5, 5-S1." On or around 23 June 2008, he received notification that he had multiple medical conditions which did not meet retention standards. Specifically, the memorandum indicated that his diabetes and low back pain failed retention standards. The memorandum provided to him listed four options regarding the disposition of his case. On 15 July 2008, he returned his receipt of notification and elected to be processed via a Non-Duty Related PEB (NDR-PEB). A review of his complete service records, to include medical records, indicates that his processing through the NDR-PEB never occurred. f. On 6 September 2012, medical notes were entered into the applicant's file indicating that he had presented to the medical clinic that day "with complaints of gradual onset of severe right > left and bilateral lower back pain. Associated symptoms include spasm and leg numbness." Moreover, the documentation states the MRI conducted on his lumbar spine "reveals degenerative changes seen at the L4-5 and LS-5 S1 levels. There is a bulge at L3-4 with fairly well-preserved overall structure of the disc itself" Id. [Emphasis added]. In the "Assessment" section of these records the medical provider indicates the applicant was suffering from the following: 1) lower back pain; 2) lumbar radiculopathy; and 3) lumbar disc degeneration. The documentation also indicates that his "range of motion lumbar spine is reduced in both flexion and extension." Id. [Emphasis added]. g. In January 2013, the applicant presented to MD Brain and Spine in Annapolis, Maryland, with complaints of "significant back and right leg pain." The medical documentation associated with that visit indicates he "has a long history of low back and right leg pain" and that despite a prior back surgery in 2011, he continues to suffer from back and right leg pain. Moreover the records indicate that "a review of [the applicant's] MRI from AAMC on 24 October 2012, shows multilevel spondylotic changes. Of most concern is a left paracentral disk bulge at T8,9 causing lateral recess stenosis." After suffering several infections related to a spinal cord simulator that was placed inside his body, he underwent surgery to remove the simulator on 27 September 2013. In November 2013, he was again evaluated by medical professionals at MD Brain and Spine. Medical notes from this visit state the following: MRI of the thoracic spine reveals edema-like signal within the subcutaneous and deeper paraspinal soft tissues extending from the T8 to T11 spine, as detailed above, concerning for soft tissue infection. Multilevel degenerative disk herniations, contributing multilevel mild to moderate central canal stenosis throughout the thoracic spine, with these degenerative changes havingg progressed in severity since the previous examination. h. In May 2013, the applicant was evaluated by the VA medical professionals regarding his post-traumatic stress disorder (PTSD). Medical notes associated with this visit indicate the following: Pt [patient] reported that in 1997 he was deployed to Bosnia, and he was tasked to build a facility for NATO [North Atlantic Treaty Organization] troops. PT reported that the was told that the ground area had land mines but that troops had cleared the space to ensure no land mines remained. Pt stated that the same day one of his workers stepped on a landmine and was blown up. Pt reported feeling surprised, nauseous and horrified at the time. Pt also reports that in 1997 while in Sarajevo outside the NATO compound, he was the headquarters engineer and traveled to an area where he negotiated with the government to make a road bypass. Pt stated that this property was supposedly cleared for land mines by Bosnia military. Pt states that despite this, one day he stepped on a hard surface on the ground and saw a 94 mm mortar which did not detonate. Pt described feeling anxious/stressed and angry at the time. Pt also described an incident that he had to draw his weapon unexpectedly. Pt states that during these events he feared for his life and experienced a sense of fear/horror/helplessness. i. In December 2013, the applicant completed a PHA and indicated that he was receiving disability compensation through the VA for his PTSD. Moreover, he indicated that he was suffering from chronic back pain and had surgery to install a spinal cord simulator. On 4 February 2014, he presented to MD Brain and Spine for issues pertaining to his spine. The medical documentation associated with this visit indicates that he was diagnosed with cervical radiculopathy after an MRI revealed a "right-sided disc protrusion at C6-7." In May 2014, he was seen by medical providers at MD Brain and Spine. He presented to the clinic that day with complaints of a "two-week history of weakness in the right leg," which "frequently gives the sensation of buckling on him" as well as "increasing thoracic and low back pain." j. On 29 April 2015, the applicant received a temporary profile for his diabetes, right shoulder pain, and lower back pain. Then, on 18 November 2015, he was issued a permanent profile for the following conditions: diabetes; sleep apnea; right shoulder pain; back pain with radiation into right leg, and behavioral health condition. Block "8" of the associated documentation indicates that his behavioral health condition is the result of PTSD. k. On 9 November 2015, the applicant received orders directing him to be discharged from the USAR, with an effective date of 1 December 2015, as a result of being passed over for promotion to LTC twice. l. On 18 November 2015, a DA Form 3349 was completed regarding the applicant's numerous service-connected injuries and indicates that he failed retention standards and should be referred to an MEB. The form states the following: (1) Reviewed documentation reveals that the Soldier is treated for the profiled conditions, has met Medical Retention Determination Point (MRDP), and does not meet retention standards in accordance with AR 40-501, Chapter 3. (2) Diabetes. No continuous consumption of combat rations. Monitor blood sugar, maintain dietary management, exercise, take medication and follow up with medical provider as directed. Red medical warning tag required. (3) Right frozen shoulder s/p surgery. (4) DDD of lumbar spine with radiculopathy s/p surgery. (5) PTSD and depression. Soldier should have a ready access to medical care and medication refills as directed by their healthcare provider. (6) Sleep apnea - stable on continuous positive airway pressure (CPAP). Needs access to reliable source of electricity and spare parts and tubing for the CPAP machine. If Soldier is without CPAP for greater than 72 hours he cannot fire a weapon, drive a vehicle, operate dangerous equipment, stand guard, or perform roles that require constant attention. m. On 10 April 2016, a line of duty determination was rendered for the applicant's PTSD. The memorandum associated with the investigation explicitly states the following: "Enclosed is a DA Form 2173 on [the applicant] for chronic PTSD that occurred during his deployment to Bosnia in 1996-1997. This line of duty has been reviewed for completeness, determined to be "in line of duty," and is approved." The DA Form 2173 indicates that the applicant was "diagnosed with PTSD in July 2010 as a result of his deployment to Bosnia." The date this form was completed is 30 November 2015. n. In or around July 2016, the applicant submitted a DA Form 1559 asking the IG to direct the Army to revoke his discharge orders and reinstate him to active duty so that he could complete the MEB process that had been ongoing since December 2014. In his IG complaint, he states the following: I submitted medical documentation to initiate [the] MEB/PEB process with the 200th MPCMD for medical injuries/illness identified in previous physicals. On 23 January 2015, I was notified by the Army Reserve Medical Management team that my medical packet for the MEB/PEB process was received, and I was assigned my case manager…Throughout 2015, I along with representatives of the 200th Medical Readiness staff were in direct communication with my case manager(s), ARMMC… In November 2015, I was notified that USARC was in the process of discharging me even though I was in the process of an MEB/PEB. Upon issuance of the discharge orders from USARC, LTC G-1, 200th MPCMD, contacted the POC at USARC regarding the discharge... LTC advised that the POC at USARC was unaware of the medical board process and refused to comply with Army Regulations. o. In or around July 2017, the applicant petitioned this honorable Board seeking a medical disability retirement, or referral to the DES so that he could be evaluated for the same. On 4 May 2021, he was notified that his request for relief had been erroneously denied. The decision letter correctly indicates that he was suffering from numerous medical conditions, to include PTSD. Further, the decision letter correctly acknowledges that he should have been referred to the DES as a result of his PTSD and that disability processing was to take precedent over his pending separation on orders. However, the decision letter erroneously states that his PTSD would not have been considered unfitting. p. Discussion: The applicant was suffering from numerous unfitting medical conditions prior to his separation from service. Several individuals within his chain of command, as well as the appropriate medical personnel, were aware of these potentially unfitting conditions. Per AR 40-501, medical personnel were required to refer him to the appropriate MEB upon discovery of any medical condition which called into question his ability to perform the duties of this office, rank, grade or rating. His referral to the DES should have occurred in November 2013 when doctors noted that his spinal conditions were drastically increasing in severity; however, this clearly never occurred. While he was eventually referred to the DES several years later, the Army failed to timely complete his medical evaluation. Moreover, the failure of his assigned PEBLO to adequately advise him of his rights throughout the disability evaluation process constitutes ineffective assistance of counsel and provides further justification for granting the relief requested herein. The failure of the Army to comply with their own regulations constitutes negligence and a breach of duty. As a result of these egregious failures, he was erroneously separated from service without ever being evaluated for a medical disability retirement. As such, they respectfully ask this honorable Board to grant the relief requested herein. q. The applicant was suffering from debilitating pain in all segments of his spine long before he was ever recommended for referral to the DES. The failure of medical providers to properly identify these conditions as unfitting in 2011-2013 was a clear error and was contrary to the mandates imposed upon them by AR 40-501. But for this error, he would have been medically retired from service before he became a two time non-select for promotion. r. AR 40-501 governs medical fitness standards for enlistment, retention, and retirement. The regulation is applicable to active duty, USAR, and ARNG Soldiers. Chapter 3 sets forth a list of medical conditions which may render a Soldier unfit for further military service. The conditions listed in this chapter are not all inclusive. Moreover, "Soldiers with disqualifying medical conditions listed in this chapter who do not meet the required medical standards will be referred to the DES in accordance with AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation)." While the presence of a medical condition does not always warrant referral to the DES, "Soldier's with any medical condition, injury or defect (individually or combined that meets the definition of a disqualifying medical condition will be referred to the DES. Medical conditions and physical defects, individually or in combination, which may render a Soldier unfit for further military service are those that: (1) Significantly limit or interfere with the Soldier's performance of their duties as substantiated by the Soldier's commander or supervisor; (2) Require medication for control which requires frequent monitoring by a physician due to debilitating or serious side effects, medical care, or hospitalization with such frequency as to interfere with satisfactory duty performance; (3) Restrict performance of any of the profile functions listed in section 4 of DA Form 3349, prevent the performance of all aerobic events of the Army Physical Fitness Test, have met a clinical MRDP, or have been temporarily profiled for more than 365 days; (4) May compromise or aggravate the Soldier's health on well-being if they remain in military service. This may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring; (5) May compromise the health or well-being of other Soldiers; and (6) May prejudice the best interests of the U.S. Government if the individual were to remain in military service. s. AR 40-501, 3-1, chapter 3 provides a list, mainly by body system, of physical conditions or defects that may render a Soldier unfit for further military service. Per AR 40-501, paragraph 3-20h, "nonradicular pain involving the cervical, thoracic, lumbosacral, or coccygeal spine, whether idiopathic or secondary to degenerative disc or joint disease that fails to respond to adequate conservative treatment and necessitates significant limitation of physical activity" is cause for referring a Soldier to the DES. t. Here, the applicant's medical records indicate that he had no less than five spinal surgeries to address the pain in his back. It is without question that a doctor would have first attempted to correct the pain with conservative treatment methods such as physical therapy. It is only after such conservative treatment methods fail that a physician begins to discuss the possibility of surgical intervention. Here, not only did conservative treatment methods fail to correct his spinal issues, but he also required no less than five surgeries. Even after these surgeries were completed, he still continued to experience back pain and an exacerbation of his symptoms. It is abundantly clear that he should have been referred to the DES after his first surgery failed to correct the issue. However, due to gross negligence of the medical personnel, that never occurred. Rather, he was issued temporary profiles again and again until Army medical providers were forced to confront the reality that not only was his condition not improving, it was also getting worse. As such, it is clear that he should have been referred to the DES no later than November 2013 and would have been medical retired from service as a result of his multiple spinal injuries. As such, relief is clearly warranted in this matter. u. Prior to the applicant's separation from service, the Army was notified that he was suffering from several unfitting medical conditions. His chain of command and attending medical personnel were aware of this fact and began to initiate the medical board process. However, he was never fully processed through the DES prior to his separation from service. The failure to fully process him through the DES is contrary to applicable regulations which mandate that disability processing take precedent over separation or retirement orders. But for these errors, he would have been found unfit and medically retired from service. v. AR 600-8-24 (Officer Transfers and Discharges) sets forth policies and procedures governing the transfer and discharge of officers in the Regular Army, USAR, and ARNG, with paragraph 1-24 setting forth the appropriate procedures for processing a Soldier who has being processed for separation and who also suffers from unfitting medical conditions. Per AR 600-8-24, when an officer is being processed for separation or retirement for reasons not including referral to the Department of the Army Active Duty Board, involuntary release from active duty due to civil conviction or moral turpitude, resignation for the good of the service, referral for elimination under chapter 4, or a request for separation, resignation or retirement in lieu of elimination, physical disability processing is to take precedent if the officer so retained consents to such action . w. In the present matter, the applicant was notified that he would be discharged from service on 1 December 2015 as a result of being twice passed over for promotion to LTC. Several years prior to his separation orders being issued, he was diagnosed with numerous unfitting medical conditions. Some of these conditions, to include his diabetes and lower back pain, were identified as unfitting as early as July 2008. He was informed that he would undergo DES processing as a result of ese conditions; however, this clearly never occurred as his service records are wholly void of any indication that these proceedings took place. Further, in April 2015, some seven months prior to the issuance of his discharge orders, he was placed on a temporary profile for diabetes, right shoulder pain, and lower back pain. Then, in November 205, he received a permanent profile for the above-mentioned conditions, as well as sleep apnea and PTSD. x. The permanent profile clearly indicated that the applicant should be referred to the DES and evaluated for a medical disability retirement. However, no such action ever occurred. More importantly, he had submitted medical documentation to initiate the MEB/PEB process as early as December 2014. The appropriate medical personnel acknowledged receipt of this documentation and notified him that he had been assigned a case manager on 23 January 2015. Despite having knowledge of his unfitting medical conditions, the Army wholly ignored the mandates of AR 40-501 and AR 600-8-24 and began to process him for separation due to his twice non-selection for promotion. His separation processing was clearly against his wishes, as demonstrated by his numerous correspondences with Army personnel indicating his desire to be processed through the DES. The failure to, at the very least, process him through the DES was a clear error that has deprived him of his right to be evaluated for a medical disability retirement. But for this error, he would have been retired from service as a result of his unfitting medical condition. y. During the DES process, the applicant's assigned PEBLO failed to adequately assist and advise him throughout the process. The failure of the PEBLO to advise him that he would need to submit formal documentation asking that he be extended on active duty orders in order to allow him to complete the MEB process was contrary to controlling regulations, constitutes ineffective assistance of counsel, and directly resulted in him being separated from service rather than being issued a medical disability retirement. When a Soldier is referred to the DES, it is the duty of the PEBLO to "inform the Soldier about the DES process, their right to a PEB, and the potential benefits for remaining in an active duty or Reserve status for purposes of completing the DES process." z. Here, there is absolutely no information that indicates or otherwise suggests that the applicant's PEBLO advised him of his need to formally request a voluntary extension of active duty orders in order to allow him to complete DES processing. Had such counseling occurred, documentation of that counseling would have been located in his file. No such documentation exists. The failure to adequately advise him of this requirement is contrary to the duties imposed upon the PEBLO pursuant to AR 635-40 and constitutes ineffective assistance of counsel. aa. Conclusion: The applicant was suffering from numerous unfitting conditions several years prior to his second non-selection for promotion and his eventual separation from service. Prior to his separation, he underwent approximately five back surgeries which failed to resolve his symptoms. The unfitting nature of his condition is evident by the January 2013 medical notes indicating that despite having spinal surgery in 2011, his condition had not improved. Moreover, the medical notes from November 2013 indicating the presence or multiple disc herniations and moderate spinal stenosis reaffirm this fact. Given the clearly worsening of his spinal conditions from 2011-2013, it is clear that the Army was negligent in failing to promptly refer him to the DES. Moreover, the failure of his assigned PEBLO to provide competent advisement throughout the DES process insofar as informing him of his right to seek an extension of his orders to allow for completion of the medical evaluation process only further justifies granting relief in this matter. In consideration of the above discussion, they respectfully ask this honorable Board to grant the relief requested herein. The complete counsel's 12-page statement was provided to the Board for their review and consideration. 4. Following enlisted service in the ARNG, the applicant was appointed a Reserve commissioned officer in the ARNG on 3 August 1991. On 1 April 1996, he was separated from the ARNG and transferred to the USAR Control Group (Inactive Ready Reserve). 5. A DA Form 2173 shows the applicant was diagnosed with high blood pressure after experiencing headaches and dizziness on or around 16 January 1997 while deployed to Bosnia. 6. Orders issued on 7 July 1998, as amended, ordered the applicant to active duty in Active Guard Reserve (AGR) status. He entered active duty on 26 July 1998. 7. A DA Form 4187 (Personnel Action) shows that on 16 September 1999, the applicant submitted his resignation in accordance with AR 600-8-24, paragraph 2-5 (voluntary release from active duty (REFRAD) due to personal reasons), and paragraph 2-11 (voluntary REFRAD essential to national interest). The DA Form 4187 further shows his resignation was based on appointment in the U.S. Secret Service. 8. The applicant DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was released from active duty and transferred to the USAR Control Group (Reinforcement) on 4 January 2000 by reason of completion of required active service. 9. The applicant was promoted to the rank of major effective 26 July 2005. 10. On 20 February 2008, the applicant was issued a permanent physical profile due to diabetes mellitus, chronic back pain, hypertensions, and hypercholesterolemia. 11. On 23 June 2008, the applicant was notified by the Command Surgeon, U.S. Army Human Resources Command (AHRC), that a review of his available medical records revealed he failed to meet medical retention standards in accordance with AR 40-501 due to diabetes mellitus and chronic back pain, lumbar spine degeneration disc disease. The applicant was advised that he had four options for disposition of his case. The options were: * discharge from the USAR * transfer to the Retired Reserve (if eligible for retirement based on qualifying years of service) * consideration by a Non-Duty Related PEB (NDR-PEB) (purview limited to fitness determination, NDR-PEB cannot award disability compensation) * consideration by an MEB (limited to conditions or injuries that occurred or were aggravated while on active duty orders) 12. The applicant elected consideration by an NDR-PEB, however, there is no evidence in the available records indicating the NDR-PEB took place. 13. The applicant's DA Form 5016 (Chronological Statement of Retirement Points), obtained from the AHRC Soldier Management Services – Web Portal, shows he did not earn qualifying years for retirement or active duty points from 5 January 2000 through 6 August 2013. 14. Orders issued by AHRC on 10 June 2014, directed the applicant's reassignment (voluntary) from the USAR Control Group (Reinforcement) to the 200th Military Police Command, effective 30 January 2014. 15. The applicant's Officer Evaluation Report (OER) covering the period 31 January 2014 through 30 January 2015, his last OER on record, shows his principal duty title was G-9 Staff/Liaison Officer. The OER also shows his rater indicated that he was unable to complete the Army Physical Fitness Test due to medical restrictions but the profile did not affect the performance of his duties. 16. Orders issued by the USAR Command on 9 November 2015, directed the applicant's discharge from the USAR effective 1 December 2015. The order contains the following statement: "Officer twice non-selected for promotion to next higher grade, Lieutenant Colonel, and completed authorized period of service after selection for selective continuation." 17. On 18 November 2015, the applicant was issued a permanent physical profile, with a PULHES code of 333113, due to diabetes (P3), sleep apnea (P2), right shoulder pain (U3), back pain with radiation into right leg (L3), and behavioral health conditions (S3). The profile also shows he had met the MRDP and did not meet retention standards. It further shows the applicant required evaluation by an MEB. 18. The applicant's Chronological Statement of Retirement Points shows he was credited with 14 years, 4 months, and 27 days of qualifying service for non-regular retirement. 19. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents, the Record of Proceedings (ROP), and the applicant's available records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). In short, the applicant through counsel requests reconsideration of ABCMR decision dated 04May2021. On 9 November 2015, the applicant received noticed that he was to be discharged from the USAR with effective date 01Dec2015 after twice non-selection for promotion to the next higher grade Lieutenant Colonel. In the interim, he received a 18Nov2015 permanent physical profile for Diabetes (P3), Sleep Apnea (P2), Right Shoulder Pain (U3); Back Pain with Radiation into the Right Leg (L3); and Behavioral Health Condition (S3) which directed evaluation by a MEB. Of note, records indicated a prior temporary profile dated 29 April 2015 for Diabetes, Right Shoulder Pain, and Lower Back Pain. It is also worth noting that the applicant had previously been notified on 23Jun2008, by the Command Surgeon, U.S. Army Human Resources Command (AHRC) that his Diabetes Mellitus and Chronic Low Back Pain, Lumbar Spine Degenerative Disc Disease failed retention standards. Although at that time the applicant elected to be processed through a Non-Duty Related PEB (NDR- PEB) there is no indication that he was ever evaluated by a PEB. At this time, the applicant requests medical disability retirement or alternatively, that he be referred to a Medical Board for evaluation of conditions that he believes are unfitting. The applicant’s file was thoroughly reviewed to include the previous ARBA Medical Advisory and Board action. The available military record was summarized in the ABCMR ROP. As this reviewer found the previous ARBA Medical Advisory was thorough, this advisory will focus on any new evidence and medical retention standards for the known medical conditions at the time of discharge. b. The complete enlistment record is contained in the ABCMR ROP. Of note, the applicant served in Bosnia 19961201 to 19970701 with MOS Civil Affairs. Later, he entered a period of active service starting 19980726 and was released 20000104. c. Medical conditions listed on the November 2015 permanent profile. (1) Diabetes Mellitus. Records indicated this condition was diagnosed in 2005 and was controlled with Metformin (16Aug2011 PHA). The 05Sep2006 Report of Medical History (for retention) indicated that he was still taking only Metformin for his diabetes condition. On 26Oct2006, his hemoglobin A1c was 5.7% (normal 4.3-6.1%). 20Feb2008 permanent physical profile indicated the following concerning his diabetes condition: There were no associated complications; he had associated dietary restrictions; and he was deployable only to areas with available medical care. On 05Mar2015, his hemoglobin A1c was 7.1%. The permanent November 2015 profile showed recommendations concerning diet, exercise, and medication for his diabetes condition. There were no service treatment records available for review for this condition. There was no In-Line of Duty associated for this condition. (2) Sleep Apnea (P2). This condition required access to a reliable source of electricity and spare parts and tubing for his CPAP machine. (3) Right Shoulder Pain/Right Frozen Shoulder (also called Adhesive Capsulitis) Status Post Surgery. There were no functional limitations specifically identified on the November 2015 permanent profile for this condition; however, it was observed that the profile indicated that the applicant could not perform APFT push-ups. There were no service treatment records available for review for this condition. There was no In-Line of Duty associated with this condition. (4) Back Pain with Radiation into the Right Leg/Degenerative Disc Disease of Lumbar Spine with Radiculopathy Status Post Surgery. 27Oct2005 progress note on Standard Form 509 included lumbar spine MRI results which showed disc bulges at L4- L5 and L5-S1. Per Maryland Brain and Spine records, the applicant had low back pain since a fall on ice in December 2003 (03May2006 note). He reported gradual onset of severe right greater than left lower back pain (06Sep2012 Maryland Brain and Spine). He had already undergone right LS-S1 microdecompression surgery in 2011 and was not considered a candidate for further surgical intervention at the time due to severe exacerbation of pain postoperatively. He underwent a trial of spinal cord stimulator placement and thoracic laminectomy (T9/10 level) on 08May2013, followed by removal of the simulator during the 24Sep2013 laminectomy lumbar/revision (T8 level) surgery. There were no functional limitations specifically identified on the November 2015 permanent profile for this condition; however, it was observed that the profile indicated that the applicant could not perform APFT sit-ups. There were no service treatment records available for review for this condition. There was no In-Line of Duty associated with this condition. Records indicated that the applicant received worker’s compensation for the back condition. (5) Behavioral Health Condition/PTSD and Depression. In April 2016, the applicant received an In-Line of Duty determination for the Chronic Post Traumatic Stress Disorder that originated during his deployment to Bosnia. Records indicated that he began treatment for depression in 2010. He participated in individual therapy almost monthly from May 2011 to May 2013, and again from November 2013 until June 2014. He noted improvement of symptoms (depression and nightmares) with use of medication and increased symptoms when temporarily stopped (back surgery 06Mar2013 Psychiatry Note, and due to renal failure 04Nov2013). Ongoing stressors were marital (wife with alcohol problems), parental (arguments with teenage daughter) and medical (back pain and back surgery and complications). The November 2015 permanent profile recommended ready access to medical care and medication refills. (a) 06Jan2011 Psychiatry Note. He was not working—he was home on workers’ compensation. He endorsed improvement of PTSD symptoms on Citalopram with addition of Prazosin for nightmares with aggressive behavior. He reported that he had retired three years prior from his U.S. Secret Service position due to his back injury. Diagnoses: Depressive Disorder, Not Otherwise Specified; and PTSD. (b) 04May2011 Psychiatry Note. He spent his time taking care of his daughter. (c) 16Aug2011 Periodic Health Assessment (PHA). The applicant did not endorse any BH concerns. His BH profile was noted as S1. (d) 18Mar2013 Initial PTSD DBQ. He reported working for the Secret Service after release from active duty (in 2000). He currently was not working due to a back injury. For the PTSD stressor the applicant described living under constant terror and having to pull his weapon at times while in Bosnia. The examiner opined the current level of impairment due to his PTSD condition was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. (e) 23May2013 MHSL Comprehensive Assessment Note Washington VAMC. The applicant presented desiring help with anxiety. He endorsed that the index PTSD trauma involved witnessing a co-worker in Bosnia stepping on a land mine. He also described two other instances when he was in fear of his life. Past psychiatric history included being on medication since 2010 and participating in individual supportive therapy since 2012. He reported that since his surgery (08May2013) he had experienced hopelessness and decreased energy. Current stressors: Marital discord and impending divorce; and limitations due to back injury status post recent surgery. Diagnoses: Depressive Disorder Not Otherwise Specified; and Anxiety Not Otherwise Specified. He did not meet full criteria for PTSD at the time. (f) 04Dec2013 Periodic Health Assessment. The applicant acknowledged the PTSD condition; however, screening for specific BH symptoms was negative. BH profile was noted as S1. Psychotropic medication included Prazosin and Citalopram. (g) 26Feb2016 Psychiatry Note. He had been prescribed Bupropion for his fatigue and lack of motivation. At the time, he had been on it for about one month and had good effect without side effect. He continued use of Prazosin for nightmares which reportedly were recurring intermittently. And finally, he continued use of Citalopram as prescribed. Mood wise, he had improvement overall. He denied any current active suicide/homicide ideation or plans; he also denied any perceptual disturbances, paranoid delusions, or other psychotic symptoms. d. There were no BH treatment visits in AHLTA; however, the applicant did receive an In-Line of Duty for PTSD due to deployment in Bosnia. Records showed that in the OER covering the period from 20140131 to 20150130, his overall performance was rated as “proficient”. The Senior rater observed that the applicant was a gifted and talented Officer that produced results. They commented concerning the applicant’s potential that he was ‘highly qualified’. The record showed that the BH condition responded to treatment when regularly taking medication and receiving follow up as recommended by his providers. There was no documentation of psychosis, or suicide or homicide ideation. The applicant’s BH condition had not required hospitalization. However, despite BH services follow up almost every other month since May 2011 until discharge; exposure to life stressors and medical setbacks contributed to fluctuating but unremitting depression symptoms. Although his depression symptoms were thought to have started due to his back condition (which was NOT considered duty related); he was susceptible to depression due to his underlying PTSD condition (which was considered duty related). The Initial PTSD C&P examiner opined that the applicant’s BH condition resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he generally functioned satisfactorily (30% level); however, JLV review revealed that the VA service connected the PTSD condition at 70%. And finally, the applicant did receive a permanent S3 profile for the PTSD condition on 18Nov2015 just two weeks prior to discharge. At that time, it was also determined that the condition failed medical retention standards of AR 40-501 chapter 3. e. At the time of the previous ARBA Medical Advisory, the applicant’s total years in service was unknown and therefore a disposition could not be recommended. Per the applicant’s recent Chronological Statement of Retirement Points dated 18Nov2022, he completed 14 years, 4 months, and 27 days of qualifying service for non-regular retirement. Since the applicant possessed a permanent level 3 physical profile for at least one medical condition which was determined to be duty related, a MEB was required by regulation. Recommendation: Referral for MEB evaluation for the PTSD condition to include de novo review of the permanent S3 profile, and for fitness determination by the PEB. f. The applicant had at least 3 other conditions at the time of discharge and possibly a 4th condition (Malignant Hyperthermia diagnosis mentioned on the 04Dec2013 PHA) which also appeared to fail medical retention standards of AR 40-501, chapter 3. These conditions also require fitness determination by the PEB: Diabetes Mellitus, Right Adhesive Capsulitis, and Degenerative Disc Disease of Lumbar Spine with Radiculopathy Status Post Surgery. Based on records available for review, these conditions did not have sufficient documentation to support duty relatedness. It should also be noted that in addition to the PTSD condition, JLV search also revealed service connection by the VA for the following: Limited Flexion of Knee (10%); and Hypertensive Vascular Disease (10%). 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 Board reviewed and concurred with the medical advisor’s finding that the applicant was suffering from numerous medical conditions prior to his separation from service, but not all were unfitting. His chain of command and military medical providers were aware of the nature of his medical conditions, as he was placed on temporary and permanent profiles prior to his discharge. However, there were no service treatment records available for review and there was no In-Line of Duty associated with most of these conditions. The one condition that would have been found unfitting is PTSD. Since the applicant possessed a permanent level 3 physical profile for this medical condition, which was determined to be duty related, a MEB was required by regulation. While the Board determined that permanent retirement is premature, the Board did find referral to a medical evaluation board evaluation for the PTSD condition to include de novo review 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 20 April 2021. As a result, the Board recommends that all Department of the Army records of the individual concerned be partially 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 Disability Evaluation System (DES) due to PTSD. 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 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 to any relief in excess of that described above, without evaluation under DES. 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, United States 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 DES 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 AR 635-40. Soldiers are referred to the DES when they no longer meet medical retention standards in accordance with AR 40-501 (Standards of Physical Fitness), chapter 3. 2. AR 40-501 provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 3. AR 635-40 establishes the DES 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 or her office, grade, rank, or rating. It provides that a medical evaluation board is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. a. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or 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 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. b. Service members whose medical condition did not exist prior to service who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability. 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. 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 service. d. A mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability presents with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. e. 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.), his or her continued performance of duty (until he or she is referred to the DES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. 4. AR 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 5. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by 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 ABCMR applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004577 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1