IN THE CASE OF: BOARD DATE: 13 December 2023 DOCKET NUMBER: AR20220010995 APPLICANT REQUESTS: a disability retirement at the grade of colonel (COL) vice non-regular retirement at age 60 in the grade of lieutenant colonel (LTC). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement in Support of Claim * Department of Veterans Affairs (VA) Undiagnosed Traumatic Brain Injury (TBI) Clinic, 21 May 2015 * VA Compensation and Pension Examination, 17 October 2019 * Atlanta VA Decision for TBI residuals, 26 July 2016 * Atlanta VA decision, 24 October 2019 * Emory Healthcare Neuro, 29 October 2021 * Social Security Administration Notice of Decision, 1 December 2017 * VA Statement in Support of Claim, 11 May 2020, * Spouse support statement, 15 July 2022 * 5 Line of Duty (LOD) Investigations Injuries and Battalion Commander Endorsement Statement * Vaccine Card, 23 October 2022 * Military Treatment Facility (MTF) Examination, accidental fall, 23 October 2002 * MTF Follow-up for residuals and other impairments, 31 October 2002 * Back pain, spasms, etc., MTF referral for physical therapy visits * VA TBI/PTSD, 21-page evidence, 17 October 2019 * MTF Provisional Diagnosis, low back pain, 13 May 2003 * Alpharetta Imaging Center, 13 May 2003 * Gyn Organs Loss Groin, Chronic Pelvic Pain * VA Investigated brain imaging, 16 September 2009 * Positive Screen for TBI, September 2009 * VA scheduling and rescheduling TBO assessment appointments, September 2009 to March 2010 * Outpatient Spinal Cord injury, 22 February2012 * VA rating decision, 14 May 2011 * Notice of Disagreement appeal, 23 April 2012 * Veteran Readjustment Counseling, May 2014 to May 2019 * Neurologist with Emory Brain Health Diagnosed Migraines, Memory Loss, and balance Problems, 25 October 2016 * Veterans Counselor Evaluation, treatment Plan, and VA Form 28-1900, 28 March 2019 * VA Form 21-2680, Examination for Household of Permanent Need for Regular Aid and Attendance, 9 May 2019 * PCP examined/noted, anxiety and depression, 26 October 2005 * MTF social worker misdiagnosed and treated PTSD and MDD, 27 October 2005 * VA retina specialist, 9 August 2021 * Emory Ophthalmologist Eye Center, 21 September 2021 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant requested assistance in various issues as follows: a. Assist with stopping and refunding allotments for Survivor Benefit Plan on his DD Form 2656 (Data for Payment of Retired Personnel), dated 19 April 2017. This request is incomplete. The applicant did not explain the circumstances associated with her request or provide any documents such as her marriage certificates and/or divorce decrees (if applicable), a DD Form 2656 indicating type of election, or evidence of denial of his specific request regarding the SBP. This issue will not be discussed in this Record of Proceedings. b. Assist with Combat Related Specials Compensation (CRSC). This request is premature. Initial applications for CRSC (with complete supporting documents) as well as requests for reconsideration and appeals are addressed to U.S. Army Human Resources Command, ATTN: AHRC-PDP-C (CRSC), Dept 480, 1600 Spearhead Division Avenue, Fort Knox, KY 40122-5408. The applicant is advised to review the eligibility requirements/process at the U.S. Army Human Resources Command website: https://www.hrc.army.mil/content/CRSC%20(CombatRelated%20Special%20Compensa tion). This issue will not be discussed in this Record of Proceedings. c. Assist with Traumatic Servicemembers' Group Life Insurance (TSGLI). This request is premature. Applications for TSGLI (with complete supporting documents) are addressed to U.S. Army Human Resources Command, ATTN: AHRC-PDP-C (TSGLI), Dept 480, 1600 Spearhead Division Avenue, Fort Knox, KY 40122-5408. The applicant is advised to review the eligibility requirements and application process at the U.S. Army Human Resources Command website: https://www.hrc.army.mil/content/TSGLI%20Claim%20Instructions. This issue will not be discussed in this Record of Proceedings. d. Assist with promotion to colonel (COL). The applicant’s request is incomplete. The ABCMR is not a promotion board. The applicant did not provide any evidence that she was selected for promotion to COL by a promotion selection board or that her name was forwarded to the Secretary of Defense for scrolling or that she received Senate Confirmation. The applicant is advised to review the criteria for promotion consideration by a special selection board (SSB) in accordance with Army Regulation 600-8-29 (Office promotion) or Army Regulation 135-155 (Army National Guard and Reserve - Promotion of Commissioned Officers and Warrant Officers). This issue will not be discussed in this Record of Proceedings. 3. The applicant states, in effect, the VA has rated her disabilities at 90%. She was awarded total disability/unemployability due to her inability to obtain and maintain employment. She believes the Army should also grant her a disability retirement. Her medical conditions include: TBI, PTSD, memory loss, eye nerve problems, migraines, major depressive disorder, chronic adjustment disorder, osteoarthritis, degenerative disc disease, chronic pelvic pain, right rotator cuff syndrome, diabetes mellitus, respiratory problems, and chronic pain syndrome. 4. Review of the applicant’s service records shows: a. The applicant was born on XX J___ 1956. She turned 60 in J___ 2016. She was appointed as a Reserve commissioned officer of the Army on 14 May 1978. b. She served in a variety of assignments, including active-duty mobilizations from October 2002 to November 2003 and October 2004 to December 2005, and attaining the rank of LTC in April 2000. c. On 24 October 2006, the U.S. Army Human resources Command informed her that she was considered for promotion to COL by a Department of the Army Reserve Components Selection Board that convened on 11 July 2006, but she was not selected for promotion. d. On 1 May 2008, the U.S. Army Human Resources Command issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). e. On 4 June 2008, the U.S. Army Human Resources Command published Orders C-06-810714 transferring her to the Retired Reserve effective 4 June 2008, due to having completed maximum authorized years of service. f. On 19 April 2017, she submitted a DD Form 108, Application for Retired Pay Benefits, requesting to be placed on the retired list on her 60th birthday. g. On 26 May 2017, the U.S. Army Human Resources Command published Orders C05-794681 placing her on the retired list in his retired grade of LTC effective XX J__ 2016. h. Her DA Form 5016 (Chronological Statement of Retirement Points) show she completed 20 qualifying years of service toward non-regular retirement. 5. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 6. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 7. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 8. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, 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: b. The applicant is applying to the ABCMR requesting revocation of her retirement for length of service and, in essence, a referral to the Disability Evaluation System. On her DD Form 149, she notes that PTSD and TBI are issues related to her request. She states: “I am reapplying to the ABCMR to correct my military records for a medical disability retirement, at the 06 pay grade, and all related military benefits entitled. Here is the medical evidence with my personal statement to support the request, including but not limited to medical reports, doctors' notes, treatment records, and other supporting records I am submitting.” c. In her self-authored letter, she notes she had a combined VA service-connected disability rating of 90% and goes on to state: “I am in the process appealing of [a] Board of Veteran Appeals (BVA) Law judge decision for service connection disability compensation for Permanent and Total 100% rating, Traumatic Brain Injury (TBI), Residuals of TBI such as Post- Traumatic Stress Disorder (PTSD) at 100%, Migraines 50%, etc. and Military Base Hazardous Exposures. Stigma from anger, extreme short temper, lack of compulsive control, distrust for authority, memory loss/dementia, lack of concentration, extreme grief, etc., are due to service TBI, PTSD, and related injuries.” d. The Record of Proceedings details the applicant’s service and the circumstances of the case. e. In a 24 October memorandum to the applicant, The United States Army Human Resources Command informed her she was considered but not selected for promotion to Colonel. f. On 1 May 2008, the applicant received her Notification of Eligibility for Retired Pay at Age 60 (Twenty Year letter). g. On 4 June 2008, the applicant was transferred to the retired reserve having completed the maximum authorized years of service. h. The applicant applied for retired pay on 19 April 2017 and was placed on the retired list for the Army of the United States on 26 May 2017. i. Paragraph E3.P3.5.1 of Department of Defense Instruction 1332.38 Subject: Physical Disability Evaluation (14 November 1996) states: “The DES compensates disabilities when they cause or contribute to career termination.” j. This concept from the DES’s governing document is incorporated into paragraph 3- 2b of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006) states: (1) 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. (2) When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit ... The presumption of fitness may be overcome if the evidence establishes that— (a) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (b) An acute, grave illness or injury or other significant deterioration of the Soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty.” k. There is no significant probative evidence the applicant had a condition as described in paragraph 3-2b(2)(a) or 3-2b(2)(b). Her final Officer Evaluation Report was an annual with a thru date of 13 October 2005. Her rater marked her as year as one with satisfactory performance. Her senior rater marked her as fully qualified and Center of Mass stating: “LTC [Applicant] provided support to the Civilian Personnel Branch of G-1 Human Resources Division during a workforce planning initiative. After working through the planning process, she gathered the statistics the leadership needed to make informed decisions. LTC [Applicant] also assisted the G-1 office with the call center established to assist families affected by Hurricanes Katrina and Rita. The call center received 546 calls and provided safe haven benefits to many families who lost their homes because of the hurricanes. LTC [Applicant] should be considered for promotion when she is eligible.” l. While JLV shows the applicant had been diagnosed and treated for several conditions during her service and had been started receiving VA service-connected disability benefits in January 2006, there is insufficient probative evidence the applicant had any duty incurred medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to her discharge. m. Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006) states: “The mere presence of an 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 present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.” n. The DES only compensates an individual for service incurred medical condition(s) which have been determined to disqualify him or her from further military service and thus prematurely end their career. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. o. It is the opinion of the ARBA medical advisor the reversal of the United States Army Physical Disability Agency’s finding the Soldier was fit by presumption is unwarranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available records, the Board concurred with the advising official finding there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to her discharge. The medical opine noted reversal of the United States Army Physical Disability Agency’s finding the Soldier was fit by presumption is unwarranted. The Board agreed the applicant’s record is absent any evidence she did not meet the standards, as a point of reference her evaluations show we was fully qualified. The Board determined there is insufficient evidence that would merit the applicant a disability retirement at the grade of colonel (COL) vice non-regular retirement at age 60 in the grade of lieutenant colonel (LTC). Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx xx xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ? REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-40, in effect at the time, establishes the Army physical 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. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. 4. Title 38, U.S. Code 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. Title 38 U.S. Code 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010995 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1