IN THE CASE OF: BOARD DATE: 26 October 2023 DOCKET NUMBER: AR20220011842 APPLICANT REQUESTS: * retirement for physical disability vice transfer to the Retired Reserve due to being medically unfit for retention * personal appearance before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Notification of Eligibility for Retired Pay for Non-Regular Service (15-Year Letter) * DD Form 214 for the period 13 January 1998 to 26 August 2008 * Combat Action Badge Certificate * National Guard Bureau (NGB) Form 22 * Army National Guard (ARNG) Retirement Points History Statement * ARNG Current Annual Statement * Separation orders * Department of Veterans Affairs (VA) summary of benefits letter * VA My HealtheVet Personal Information Report (1,322 pages) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, he is requesting reevaluation of his separation based on his service-connected and combat-related disabilities. At the time of his transfer to the Retired Reserve, he was not mentally stable, and he was disturbed by several conditions that affected his decision-making process. The Puerto Rico ARNG (PRARNG) advised him not to wait for a medical board and to retire as soon as possible, which was the action taken. All his medical conditions are combat-related. He served in Iraq and was awarded the Combat Action Badge. He is receiving medical treatment for a number of service-connected medical conditions that include post- traumatic stress disorder (PTSD) rated 100% disabling. 3. Following service in the ARNG and in the Regular Army, which includes service in Iraq from 12 January 2006 to 22 February 2007, the applicant enlisted in the PRARNG on 28 February 2009. 4. A DA Form 3349-SG (Physical Profile Record) shows the applicant was issued permanent physical profiles on 19 August 2016 for sleep disorder, neck injury/pain, and lower back injury/pain and on 27 March 2017 for anxiety disorder and PTSD. 5. On 3 April 2017, the applicant was informed by his battalion commander that he was initiating action to separate him from the PRARNG under the provisions (UP) of Army Regulation (AR) 135-178 (ARNG and Reserve Enlisted Administrative Separations), paragraph 15-1k (medically unfit for retention), due to his medical condition, which did not allow him to perform military duties in his military occupational specialty (MOS). He was also advised that: a. If he understood he was able to perform military duties despite his medical conditions, he could request referral to a non-duty related (NDR) Physical Evaluation Board (PEB). b. He could waive referral to an NDR PEB and request transfer to the Retired Reserve (if eligible). 6. On 3 April 2017, the applicant provided a memorandum, subject: Request for Separation and Waiver of PEB Evaluation, requesting discharge from the ARNG due to physical disability based upon the findings and recommendations of a Periodic Health Assessment (PHA), which considered him unqualified for retention in the military because of physical disability. He also acknowledged the following: a. He had been fully informed and understood he was entitled to the same consideration and processing as any other Soldier of the Army separated for physical disability, including consideration of his case by a PEB, if he understood that he was able to perform military duties. However, he elected not to exercise this right. He also understood the VA would determine entitlement to VA benefits. b. If this application was approved, he would be separated because he was medically unfit for retention and condition was not incurred in the line of duty. 7. The applicant also provided a Memorandum for Record, subject: Request for Separation, stating the following: I, [applicant's rank and name] last four [] certify that I received the proper orientation about my rights in the NDR/PEB. Based on the regulation AR 635-40 [Disability Evaluation for Retention, Retirement, or Separation], I can continue in the PRARNG to complete my 20 years of services (COAR) [continuation on Active Reserve), but I recognize my limitation in my military duties. For that reason, I'm requesting my discharge from the PRARNG. 8. The applicant's Notification of Eligibility for Retired Pay for Non-Regular Service (15-Year Letter) is dated 3 May 2017. This letter informed him that he had completed 15 years but fewer than 20 years of qualifying service and will be eligible for retired pay upon application at age 60. His eligibility for retired pay at age 60 is based upon the following: * He was in the Selected Reserve * He completed at least 15 but less than 20 years of qualifying service * He no longer met the qualifications for membership in the Selected Reserve solely because he is unfit due to physical disability and the disability was not the result of misconduct 9. Orders issued by the PRARNG on 24 May 2017 directed the applicant's discharge from the ARNG and his reassignment to the Retired Reserve effective 31 May 2017 by reason of early qualification for retired pay at age 60 (involuntary medically disqualified member). The authority for the separation is shown as National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-35l(8) (Medically unfit for retention per Army Regulation 40-501 (Standards of Medical Fitness)). 10. The applicant's ARNG Retirement Points History Statement shows he was credited with 19 years, 4 months, and 14 days of service for non-regular retired pay. 11. The applicant provided his VA summary of benefits showing he is receiving service- connected disability compensation with a combined 100% disability rating for the following conditions: * PTSD * erectile disfunction * discogenic disease and spondylosis of the L5-S1 * dermatitis * right knee patellofemoral pain syndrome claimed as bilateral knee condition * left knee patellofemoral pain syndrome and left femur osteochondroma claimed as bilateral knee condition and joint pain * hemorrhoids * Crohn's colitis * tinnitus * obstructive sleep apnea * sensorineural hearing loss, left ear 12. 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 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 a referral to the Disability Evaluation System (DES). He states: “I am requesting discharge reevaluation due to medical service connected and Combat related disabilities. During the time of discharge, I was not mentally stable and disturbed by several conditions affecting me in the decision-making process. The Puerto Rico National Guard told me, to deciding not to wait for medical board and to be retired as soon as possible and that was the action taken at the moment. Please reconsider.” c. 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 he enlisted in the Army National Guard on 3 October 2008 and was discharged from the Puerto Rico Army National Guard (PRARNG) on 31 May 2017 under the provisions of paragraph 6-35l(8) of NGR 600-200, Enlisted Personnel Management (31 July 2009): Medically unfit for retention per AR 40-501. It shows he had 19 years 4 months, and 14 days of total service fore retired pay. d. A DD 214 shows the applicant was an enlisted Soldier in the Regular Army from 13 January 1998 thru 26 August 2008 and was honorably discharged at the completion of his required active service. It shows he served in the Balkans from 29 August 1998 thru 17 March 1999 and in Iraq from 12 January 2006 thru 22 February 2007, service for which he was awarded a Combat Action Badge. e. Paragraph 6-35l(8) of NGR 600-200: “Commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per AR 40-501. If the Soldier refuses to report as directed, see paragraph 6-36u below. Commanders who do not recommend retention will request the Soldier’s discharge. When medical condition was incurred in line of duty, the procedures of AR 600-8-4 will apply. Discharge will not be ordered while the case is pending final disposition. This paragraph also includes those Soldiers who refuse or ineligible to reclassify into a new MOS. RE 3.” f. The applicant was placed on a duty limiting permanent physical profile for Anxiety Disorder and PTSD on 27 March 2017. The profile also listed three non-duly limiting conditions: Obstructive sleep apnea, Neck injury/pain, and lower back injury/pain. g. JLV show he has a 100% VA service connected disability rating for PTSD which was effective 6 April 2016, more than 13 months before he was inappropriately discharged from the Army. h. A 3 April 2017 memorandum from his battalion commander shows the condition was treated as if it was not incurred in service to his country: He was offered only a non- duty related physical evaluation board or discharge to the Retired Reserve. He went on to state: “I am recommending Honorable Discharge from the Army National Guard with Transfer to the Retire Reserve, based on years of service creditable towards retirement, my recommendation will be submitted through the 191st RSG Commander to the Separation Authority who will make the final decision in your case.” i. This was inappropriate, and it is unknown why his command chose to separate their Soldier as if his anxiety disorder/PTSD was not related to his military service to our country when multiple Army regulations require referral of such cases to the DES. j. Paragraph 7-1 of AR 40-400, Patient Administration, states in part: “If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer (PEBLO).” Note there is no mention of component or duty status. Paragraph 7-5b(5) is more direct for this case, stating that one of the situations which requires MEB consideration is “an RC member not on AD who requires evaluation because of a condition that may render him or her unfit for further duty.” k. Paragraph 3-2 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012), underscores the error made by his command: “When a commanding officer believes that a member of his command is unfit to perform the duties of his office, grade, rank, or rating because of physical or mental disability, he will refer the member for examination to the medical treatment facility which provides primary medical care to his command.” l. The applicant was errantly administratively discharged when he should have been referred to the DES for at least one duty related condition (PTSD) which failed the medical retention standards of chapter 3, AR 40-501 and led to his discharge. m. It is the opinion of the Agency Medical Advisor that a long overdue referral of his case to the DES is clearly warranted. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of requests for changes to discharges. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that the failure to refer the applicant to the Disability Evaluation System prior to his discharge was an error. Based on a preponderance of the evidence, the Board determined the applicant should now be afforded processing through the Disability Evaluation System to determine if he should be retired for disability or discharged with severance pay. 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 a recommendation for partial relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by referring his records to the Office of The Surgeon General for further referral to be processed through the Disability Evaluation System. a. The individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to his discharge. b. 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. c. Should a determination be made that the applicant should be retired for disability or discharged for disability with severance pay, these proceedings serve as the authority 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 without benefit of the review described above. 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 (AR) 635-40, dated 19 January 2017, prescribes the Army Disability Evaluation System (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 office, grade, rank, or rating. It implements the requirements of Title 10, U.S. Code, chapter 61; Department of Defense Instructions (DoDI) 1332.18 (Disability Evaluation System); DoD Manual 1332.18 (DES Volumes 1 through 3) and Army Directive 2012-22 (Changes to Integrated Disability Evaluation System Procedures) as modified by DoDI 1332.18. a. The objectives are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits to eligible Soldiers whose military service is terminated because of a service-connected disability; provide prompt disability evaluation processing ensuring the rights and interests of the Government and Soldier are protected; and, establish the MOS Administrative Retention Review (MAR2) as an Army pre-DES evaluation process for Soldiers who require a P3 or P4 (permanent profile) for a medical condition. b. Public Law 110-181 defines the term, physical DES, as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments and is composed of the medical evaluation board (MEB), PEB, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. c. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile approved in accordance with the provisions of AR 40–501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears not to meet medical retention standards in accordance with AR 40–501. Within (but not later than) 1 year of diagnosis, the Soldier must be assigned a P3/P4 profile to refer the Soldier to the DES. (2) The Soldier is referred to the DES as the outcome of MAR2 evaluation. d. An MEB is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per AR 40-501. This board may determine a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. This board must not provide conclusions or recommendations regarding fitness determinations. e. The PEB determines fitness for purposes of Soldiers’ retention, separation or retirement for disability under Title 10, U.S. Code, chapter 61, or separation for disability without entitlement to disability benefits under other than Title 10, U.S. Code, chapter 61. The PEB also makes certain administrative determinations that may benefit implications under other provisions of law. f. Unless reserved for higher authority, the U.S. Army Physical Disability Agency approves disability cases for the Secretary of the Army and issues disposition instructions for Soldiers separated or retired for physical disability. g. Unit commanders will ensure medical profiles containing a P3/P4 or temporary (T) 3/T4 in one of the serial profile factors are reviewed according to the standards of AR 40-501. Among the duties required, a unit commander will provide a non-medical assessment by completing DA Form 7652 (DES Commander’s Performance and Functional Statement). 3. AR 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 AR 635-40. The regulation in effect at the time states in: a. Paragraph 3-3, U.S. Army Reserve or 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 (Army Reserve Medical Examinations) and chapter 10 (ARNG) of this regulation. b. Chapter 10 sets basic policies, standards, and procedures for medical examinations and physical standards for the ARNG. The Clinical Section, NGB, Office of the Chief Surgeon, is the office responsible for management of all issues pertaining to this chapter. c. Paragraph 10-25 (Soldiers pending separation for failing to meet medical retention standards) states members with non-duty related impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits. Determination of whether a non-duty case is forwarded to the PEB is at the request of the Soldier. 4. NGR 600-200, paragraph 6-35l(8), of the regulation in effect at the time, states commanders who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per AR 40-501. Commanders who do not recommend retention will request the Soldier’s discharge. When medical condition was incurred in line of duty, the procedures of AR 600-8-4 (Line of Duty Policy, Procedures, and Investigations) will apply. Discharge will not be ordered while the case is pending final disposition. 5. 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. 6. Section 1556 of Title 10, U.S. 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. 7. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 8. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; traumatic brain injury; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 9. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011842 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1