IN THE CASE OF: BOARD DATE: 29 August 2023 DOCKET NUMBER: AR20230000420 APPLICANT REQUESTS: • correction of his records to show he was transferred to the Retired Reserve instead of discharged • referral of his medical records to the Army Disability Evaluation System (DES) • personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • self-authored statement • Line of Duty Determination memorandum • three DA Forms 3349 (Physical Profile Record) • Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) • U.S. Army Reserve (USAR) discharge orders • DA Form 5016 (Chronological Statement of Retirement Points) • several email messages • five DD Form 214 (Certificate of Release or Discharge from Active Duty) • letters from the U.S. Army Human Resources Command (AHRC) FACTS: 1. The applicant states he signed documents with his unit's retention noncommissioned officer (NCO) requesting transfer to the Retired Reserve, but the paperwork was delayed by his unit. The paperwork was difficult, and communications were almost impossible because after his separation, he had no access to the Army email systems to get the required documents. Further communications were halted within three months due to the COVID pandemic in 2020. Additionally, all communications with any Army entity, including AHRC, fell apart because there was one working for almost a year due to COVID. He did not receive any help until he contacted his State's Senator. 2. In a separate self-authored statement, the applicant further states, in part: a. Apparently, his unit did not process his paperwork properly. He signed his agreement contract with the Army Retention NCO before the end of his service in November 2019 so that he would be transferred to the Retired Reserves. This was not what happened. He was not able to contact most of the Soldiers he had connections with due to the fact that most communications were through secure internet, which he did not have access to after his discharge. He could not reach any Army email contacts through regular, civilian email addresses. b. It took at least three months to process in the system, so he waited. Then in March of 2020, while getting a Common Access Card (CAC), he found that he was not processed correctly. The CAC office informed him that he was not listed in their system as retired, but as something completely wrong. He served for more than 20 years and he was issued a 20-Year Letter. He made several phone calls and sent several emails to his unit to fix this, but he had no access to any military emails. Even after using regular email and some phone numbers he had, he could not reach any one as COVID hit and no one was available. He did not get answers until August/September of 2020. The complete statement was provided to the Board for their review and consideration. 3. Following service in the U.S. Marine Corps, the applicant enlisted in the USAR on 22 January 1998. 4. The applicant provided a Line of Duty Determination memorandum, dated 13 July 2010, showing a DA Form 2173 (Statement of Medical Examination and Duty Status) was completed and approved for lower back pain that occurred during active duty on 8 April 2010. 5. The applicant's Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) is dated 25 July 2013. This letter informed him that he completed the required years of qualifying Reserve service, and he is eligible for retired pay upon application at age 60. 6. The applicant also provided three DA Forms 3349 showing he was issued temporary physical profiles due to lower back injury/pain and adjustment disorder. 7. Orders Number 19-318-00048, issued by Headquarters, 99th Readiness Division on 14 November 2019, directed the applicant's honorable discharge from the USAR effective 14 November 2019. His DA Form 5016 shows he was credited with 26 years and 2 days of qualifying service for non-regular retirement. 8. The applicant provided: a. A series of email messages showing he was communicating with his unit's personnel channels and received his separation orders just prior to the effective date of his separation. The messages also shows he was in the process of submitting a DD Form 2656 (Data for Payment of Retired Personnel). 9. Letters from AHRC addressed to his States' Senator regarding his enrollment in the Defense Enrollment Eligibility Reporting System (DEERS) and his status as discharged instead of Retired Reserve. AHRC stated the applicant cannot be issued a retiree identification (ID) card unless his discharge orders are revoke and orders transferring him to the Retired Reserve are issued. AHRC also advised the applicant to apply to the Army Review Boards Agency (ARBA) if he believed the manner of his separation was inaccurate. 10. During the processing of this case, an advisory opinion was requested from AHRC. On 27 February 2023, the AHRC Operations and Readiness Division provided an advisory opinion stating the following: a. This response is in reply to an advisory opinion request for the applicant in reference to his DEERS record and the inability to obtain a Retired Department of Defense ID card. b. AHRC has reviewed the applicant's military records and determined that he was discharged on 14 November 2019. Although he is in receipt of a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), his former member status in DEERS will remain until he is either placed on the Army of the United States Retired List at age 60, or unless the discharge order is revoked and he is transferred to the Retired Reserve. 11. The advisory opinion was provided to the applicant and given the opportunity to provide additional comments. He responded and stated the following: a. He wishes to add extra statements to his application and case. The first and biggest issue is that his military retirement was never processed correctly and has the incorrect status. As the AHRC advisory opinion states, his orders need to be revoked and corrected. This is exactly what he is looking to do and exactly why he submitted his application. b. Other issues that should be considered are that when he got out, his unit pushed him out without any medical oversight and without medical help with his back, leg, and sciatic pain. He was in talks with the medical sections for profiles and exams, but he was pushed out too quickly. Also, COVID-19 hit while he got out and by the time he tried to get an ID card, every office and branch was shut down so that he could not find any help with his issues for almost a year. This obviously pushed his situation to the side and it went on longer than necessary. This probably complicated his situation causing problems where none really existed. c. He is extremely hopeful that these statements might help his case since he has over 28 years of service in the military with five deployments and missions completed, including two times in Iraq. His service has caused great mental issues that hurt his marriage and family, as well as his teaching career. 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, 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 revocation of the order discharging him from the USAR and a subsequent transfer to the retired reserve with a non-regular retirement. On his DD From 149, he had also requested, in essence, a referral to the Disability Evaluation System (DES). He does not lists the condition(s) for which he believes he should be permanently retired for physical disability but does mark boxes indicating PTSD, TBI, and other mental health issues are related to his request. He states in his self-authored letter: “Senator Toomey's office was able to contact Army and Military Records Department and show that I am indeed retired. From there, I was able to get an ID card. However, while getting the ID card, the ID office in Coraopolis, PA said that I was now listed in the system as a regular person out of the Army with no record and no benefits. I still was not shown to be retired. As I said before, I have my Twenty-Year Letter. So now I have a valid ID CAC card but it is incorrect. I am apparently wrong in the Army DEERS system. I am listed incorrectly and it is on the ID card as "Former Member". This is actually an insult to me. I should be listed as Retired Reserves or simply Retired Military/ Army. I am submitting this form to apply to have my information and records corrected so that I am in the system, especially DEERS, as the proper designation. The first issue will be for retirement. I will need this information to be absolutely correct when I am at the right age and put in for my retirement.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)” on 25 July 2013. Discharge orders published by the 99th Readiness Division on 14 November 2019 show the former drilling USAR Soldier was discharged from the USAR effective 14 November 2019. A Chronological Statement of Retirement Points (DA Form 5016) shows the applicant had 26 years, 0 months, and 2 days of qualifying service for retirement at the time of his discharge. d. The only medical documentation submitted with the application are three temporary duty limiting Physical Profile Records (DA Form 3349): A three-month profile for Low Back Pain/injury with an expiration date of 10 October 2018; A three-month profile for Low Back Pain/injury and Adjustment Disorder with an expiration date of 5 August 2019; and an extension of the second profile with a new expiration date of 26 November 2019. There were no DES initiating permanent physical profiles. Even had one been issued at this time, the applicant would have been found fit by presumption because he was discharged on 14 November 2019. e. When a Service Member is referred to the DES during the 12-month presumptive period, the member is found fit by presumption because the medical condition(s) did not cause or contribute to their career termination and so are non-compensable. For the Army, the date of referral to the DES is the date the Soldier’s profile is signed by the approval authority. f. The presumptive period is the 12 months prior to a service member’s discharge from the Service for any of the reasons outlined in paragraph 5b of appendix 2 to enclosure 3 of Department of Defense Instruction 1332.18, SUBJECT: Disability Evaluation System (DES) (5 August 2014). When a service member is referred to the DES during this period, the member is found fit by presumption, that is, the medical condition(s) did not cause or contribute to their career termination and so are non-compensable. g. The presumptive period for this applicant is addressed in paragraph 5b(3): “An enlisted member is within 12 months of his or her retention control point or expiration of active obligated service, but will be eligible for retirement at his or her retention control point or expiration of active obligated service.” h. There are three circumstances in which the presumption of fitness is overcome. Paragraph 5a(1) provide that: An illness or injury occurs within the presumptive period that would prevent the Service member from performing further duty if they were not retiring. A serious deterioration of a previously diagnosed condition, including a chronic one, occurs within the presumptive period, and the deterioration would preclude further duty if the Service member were not retiring. The condition for which the Service member is referred is a chronic condition and a preponderance of evidence establishes that the Service member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period because of the condition. i. None of these situations appear to have been applicable to the applicant’s chronic low back pain or adjustment disorder, conditions which may or may not have been duty related, a requirement for compensation via the DES. j. His final NCO Evaluation Report (SSG-1MG/MSG) shows he met standards and was found qualified by his senior rater who opined: “SFC [Applicant] is fully committed to the unit's mission. He possesses the knowledge, operational experience, and leadership abilities to successfully lead Soldiers in position of greater responsibility. Promote with peers and send to next NCOES [Non-Commissioned Officer Education System].” k. There is no 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 his discharge. l. Review of his records in JLV shows he has been awarded multiple VA service-connected disability ratings, including several related to his lumbar spine. There are no mental health related disability ratings. 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. 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. m. It is the opinion of the ARBA medical advisor there is no medical condition upon which to grant a retirement, and thus a referral of his case to the Disability Evaluation System is not warranted. BOARD DISCUSSION: 1. The Board determined 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 partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered a. The evidence shows the applicant completed 20 or more qualifying years of service towards non-regular retirement. The Board found no evidence he requested to transfer to the Retired Reserve. However, the Board also determined and was persuaded by his argument that due to lack of counseling/personal interactions and geographical separation, compounded by COVID restrictions, the applicant may not have known of the requirement to request a transfer to the Retired Reserve. If had known of this requirement and if he had been properly counseled, it is reasonable to presume he would have done so. Based on a preponderance of evidence, the Board determined that a correction to the applicant’s separation orders was necessary. b. As for the disability separation, the Board reviewed and was persuaded by the medical advisor’s finding no 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 (DES). 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 his discharge. Based on the preponderance of the evidence, the Board determined a referral of his case to the DES is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF xx: xx: xx: 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 records of the individual concerned be corrected: • showing the applicant requested, in a timely manner, to be transferred to the USAR Control Group (Retired Reserve) as a result of him completing 20 years or more of qualifying service for retirement • amending Orders Number 19-318-00048, issued by Headquarters, 99th Readiness Division on 14 November 2019, to show he was transferred to the USAR Control Group (Retired Reserve) effective 14 November 2019. 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 a medical separation. 8/29/2023 I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation 140-10 (Army Reserve Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring USAR Soldiers. a. Chapter 6 (Transfer to and from the Retired Reserve) provides that assignment to the Retired Reserve is authorized if the Soldier completed 20 qualifying years for retired pay at age 60 and is eligible to receive the Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). b. Chapter 7 (Removal from Active Status) provides that Soldiers removed from active status will be discharged or transferred to the Retired Reserve. Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible. 2. Army Regulation 40-501 (Standards of Medical Fitness) 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. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), dated 19 January 2017, prescribes the Army 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 Military Occupational Specialty 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 medical evaluation boards (MEB), physical evaluation boards (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 Army Regulation 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 Army Regulation 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 Army Regulation 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). h. Soldiers will not be referred for MAR2 if the Soldier’s request for regular retirement, non-regular retirement, or transfer to the Retired Reserve has been approved. 4. Army Regulation 15-185 (Army Board for Correction of Military Records (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, 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. //NOTHING FOLLOWS//