IN THE CASE OF: BOARD DATE: 30 August 2023 DOCKET NUMBER: AR20230000803 APPLICANT REQUESTS: in effect, a physical disability retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * ARBA online application * DD Form 149 (Application for Correction of Military Record) * LCSW statement * statement of support * statement of support * statement of support * Social Security Benefit Verification Letter * SF 600 (Chronological Record of Medical Care) * Department of Veterans Affairs (VA) award letter * medical record (1 page) * marriage license * NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) 1 December 1996 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 17 May 2005 * DD Form 214, 31 December 2005 * NGB Form 22, 15 September 2007 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 part, while stationed in Afghanistan she saw the physician’s assistant (PA) about her lower part of her back aching and aching in both knees and ankles. The PA advised her to stop carrying her weapon and to stop wearing her boots for a period of time. She has documents for these issues. When she returned from Afghanistan to process out back to National Guard duty, she was told she had symptoms of posttraumatic stress disorder (PTSD). She had to stay on orders a couple of days until she could get cleared because of the symptoms she was having of PTSD. She saw a psychiatrist from the VA several times. The psychiatrist recommended she be discharged and not attend any more drills. She received disability for everything she named except her lower back. She is 100 percent total and permanent. She also believes she was exposed to something related to her breast cancer. Her unit, the 528th EN BN in Monroe, Louisiana had several veterans that have passed away or are dealing with cancer. She and 2 other ladies were diagnosed with breast cancer. She couldn’t have finished getting [her 20 year] retirement even if she had wanted. She feels those conditions keep her from continuing a career in anything. She is always in pain, it never stops. Also, her husband is assigned as her caregiver. She just wants what she deserves because she really doesn’t have a normal life. She is suffering, which is why she’s asking the Board for a correction in discharge. Also, she is receiving social security benefits. She didn’t know she could get a retirement if she didn’t have 20 years. She was told that she could retire on disability retirement. She was told she was being discharged, but no one ever said if she didn’t have 20 years, she could go before a board. A veteran that was in her unit told her she was supposed to get out on disability retirement. This veteran was station with her in Afghanistan and was aware of all her complaints. The unit she was in really didn’t do their job on the line of duty (LOD)s. A lot of documents were not in several veteran’s files to prove anything. The applicant’s complete statement is available for the Board’s review. 3. The applicant enlisted in the United States Army Reserve on 12 August 1992 for 8 years. A DD Form 214 shows she service on active duty for training from 14 January 1993 to 14 May 1993. 4. On 15 June 1993, the applicant enlisted in the Louisiana Army National Guard (LAANG for 7 years and 1 month. A NGB Form 22 She was discharged from the LAANG on 1 December 1996 and assigned to the Individual Ready Reserve (IRR). 5. The applicant enlisted in the LAANG on 3 October 2000 for 1 year. She remained enlisted through a series of extensions. 6. On 1 March 2004, the applicant entered active service in support of Operation Enduring Freedom. She served in Afghanistan from 19 April 2004 to 23 March 2005. She was released from active duty on 17 May 2005. A DA Form 2166-8 (NCO Evaluation Report) for the period of March 2004 to April 2005 shows she was rated fully capable, her overall performance successful and superior potential. She did not complete an Army Physical Fitness Test (APFT) due to being deployed. 7. The applicant reentered active service on 29 August 2005 for post service benefits and entitlements. She was released from active duty on 31 December 2005. A DA Form 2166-8 for the period of May 2005 to November 2005 shows she again was rated fully capable, her overall performance successful and superior potential. She did not complete an APFT. 8. A DA Form 2166-8 for the period of December 2005 to November 2006 shows she again was rated fully capable, her overall performance successful and superior potential. She passed her APFT on 6 May 2006. However, the report states she was unavailable for signature due to medical issues. 9. An Army National Guard Annual Statement, prepared 8 January 2007, shows the applicant was credited 10 years of service for retired pay. She was honorably discharged from the LAANG and the Army Reserve effective 15 September 2007 for medically unfit for retention per AR 40-501 Chapter 3. She was credited 14 years 11 months 13 days total service for pay, and 10 years total service for retired pay. 10. The applicant provided: a. An undated letter of support from Licensed Clinical Social Worker (LCSW) at Bayne Jones Army Community Hospital, which states: the applicant has been identified as having some stress symptoms upon return from deployment. She may need immediate services, and may be experiencing stress, anxiety, and/or depression. Please ensure that she receive further evaluation and treatment as deemed appropriate during the transition period. b. An unsigned letter of support from , the applicant’s roommate while stationed in Afghanistan from 2004 to 2005. She states: during the time in Afghanistan, she witnessed the applicant in constant pain with her legs and back. The pain was so bad that she would cry herself to sleep every night. The head doctor for the unit had to give the applicant a profile where she could not carry her M-16 weapon due to her back pain. From the day they showed up in Afghanistan to the day we left, she was not the same. Her health declined rapidly with excruciating pain. c. A letter of support from a member of her unit, SFC , dated 25 October 2022, which states: the applicant worked for her when she was in the S-1 section in HSC 528th Engineer Battalion. The deployed to New Orleans and Afghanistan together. It is safe to say that she knows her very well and can attest to her work ethics. In 2007 she was discharged from the Guard under the recommendation of a doctor from the VA. She believes that based on her 16 years of duty and her condition that she held, there should have been a Medical Board offered to her. If a servicemember develops a medical condition that prevents them from performing their military duties or making a full return to duty within one year the servicemember may be referred to a Medical Evaluation Board (MEB). The documents needed for a MEB are a Narrative Summary, Commander’s statement, and a personal statement. The unit had all of these documents but failed the applicant by not submitting the proper documentation to the MEB to see if she could have been eligible for a medical retirement. d. An undated and unsigned letter of support from , a member of the applicant’s unit who deployed with her. It states: they deployed together to Afghanistan during OEF from April 2004 to April 2005. The both worked in the S1 unit. They also shared a room together in the barracks. During the deployment, she can remember the applicant complaining about her legs and back hurting. She remember one time she had to stop carrying her weapon for a while due to back pain. She would go to the Medic and he would prescribe 800mg Ibuprofen. It would last for a little while but the pain would return. They had to walk to work from the barracks. The applicant complained about her legs so much, they were giving a little Mule to drive back and forth to work. It really helped out. e. A Social Security Benefit Verification Letter, dated 28 October 2022, showing she approved for full monthly social security benefit effective 20 May 2009. The letter does not show her disabling condition(s). f. A SF 600 showing an entry from 16 August 2004 showing the applicant was seen for complains of joint pain in both knees and both ankles for 2 weeks. She denied trauma to joints. Pain is aggravated by exertion. g. A VA award letter, dated 8 June 2011, showing a rating of 70 percent for PTSD effective 16 July 2010. She is also rated 10 percent for left ankle strain, 10 percent for right knee strain, 10 percent for left knee strain, 10 percent for right ankle strain. She has a combined rating of 80 percent. h. A medical record, dated 30 June 2006, (a continuation of a previous page not provided) showing the following: Article 15 charges made, which were not dropped until she called IG and legal said they had no basis. The Sergeant was the perpetrator, she uninvolved, but because they believed she turned Sergeant in, they focused blame on her, victimizing her. Stress has been ongoing from National Guard unit, members questioning her about these past accusation. Other stress of leaving 8-year-old child when deployed. Panic Disorder, with Agoraphobia. Dysthymia, emotionally humiliated. Item 4 of the recommendations states she is disabled for military service. [Physician] recommends she be released from military service, will give her a copy of this not to give her superior officer. 11. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 12. 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. 13. 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. 14. 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. 15. 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), and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: The applicant has applied to the ABCMR requesting, in essence, a referral to the Disability Evaluation System (DES). She states: “While stationed in Afghanistan I saw the PA [physician assistant] about my lower part of my back aching, aching in both knees and ankles. When I returned from Afghanistan to process out back to National Guard Duty, I was told that I had symptoms of PTSD. I had to say on orders a couple of days until I could get cleared because of the symptoms I was having of PTSD. I saw a psychiatrist from the VA several times. The psychiatrist recommended I be discharged and not attend any more drills. I received disability for everything I named except my lower back. I am 100% total and permanent. I also believe I was exposed to something in relations to my Breast Cancer. My unit 528th En Bn [engineer Battalion] in Monroe, Louisiana have several veterans that has passed away or dealing with Cancer. Myself and 2 other ladies were diagnosed with Breast Cancer. What are the chances of this happening. It has to be something we got exposed to. I couldn’t have finished getting retirement even if I wanted to. I feel those conditions keep me from continuing a career in anything.” b. The Record of Proceedings details the applicant’s service and the circumstances of the case. The DD 214 for the period of Service under consideration shows the applicant was on active duty from 29 August 2005 thru 31 December 2005 and was released at completion of her required active service at the expiration of her self- terminating orders. Her station where separated was Monroe, LA. c. The applicant’s Report of Separation and Record of Service (NGB Form 22) for the period of service under consideration shows she entered the Army National Guard on 3 October 2000 and was honorably discharged from the Louisiana Army National Guard (LAARNG) on 15 September 2007 under provisions provided in paragraph 8- 35l(8) of NGR 600-200, Enlisted Personnel Management: Medically unfit for retention per AR 40-501 d. A single handwritten military medical encounter shows the applicant was seen for a 2-week history of bilateral knee and ankle pain on 16 August 2004. The examination was normal and she was treated with an anti-inflammatory medication and directed to return as needed. e. A single page from a 30 June 2006 Veterans Hospital Administration encounter shows the applicant had been diagnosed with “Panic Disorder with Agoraphobia, Dysthymia, emotionally humiliated, and avoidant personality disorder for a combination of military and personnel stressors. Her clonazepam dose was decreased to .5mg each night, her Paxil was continued at 20mg each night, and lorazepam was continued at 0.5 mg twice a day as needed for anxiety. The VA provider concluded with: “Patient is disabled for military service; I request patient be released from military service, I will give her copy of this note. to give to her superior officer. Return to clinic in 4-6wks, lives far.” f. No permanent profile was submitted with the application, and she has no health records in MEDCHART. g. Neither the applicant’s separation packet nor documentation addressing her administrative separation was submitted with the application or uploaded into iPERMS. h. Her final NCO Evaluation Report was an annual with a thru date of 30 November 2006. It shows she passed her Army Physical Fitness Test on 6 May 2006 and was within Army height and weight standards. Her rated marked her as a success in all NCO Values/Responsibilities and blocked her as fully capable. Her senior rater middle blocked her with 3’s on a scale of 1 to 5 for both overall performance and overall potential opining: * taking care of soldiers is priority one * level of tactical proficiency makes her extremely reliable in all missions * always willing to learn * unparalleled selfless service to duty i. These were the same block ratings the applicant had received from her rater and senior rater on both her 2004 and 2005 NCO Evaluation Reports. j. There is no 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 her office, grade, rank, or rating prior to her discharge. k. Review of her records in JLV shows he has been awarded multiple VA service- connected disability ratings, including ratings for PTSD, fibromyalgia, and history of breast surgery. However, 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. l. 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.” m. This concept from the DES’s governing document is incorporated into paragraph 3-2b1 of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006) states: “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.” n. 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.” o. It is the opinion of the ARBA Medical Advisor that referral to the applicant’s case to the Disability Evaluation System is not warranted. 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, available military records and the medical review the Board concurred with the advising official finding that referral to the applicant’s case to the Disability Evaluation System is not warranted. The opine also noted there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of her office, grade, rank, or rating prior to her discharge. Furthermore, the Board agreed, based on the medical review the applicant’s records lacks evidence she had any duty incurred medical condition which would have failed the medical retention standards. 2. The Board noted the letters of supports provided by the applicant, however, the Board found no cause for referral to the Disability Evaluation System. Based on the preponderance of evidence and the medical opine, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, 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. National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) prescribes the criteria, policies, processes, procedures and responsibilities to classify; assign; utilize; transfer within and between states; provides Special Duty Assignment Pay; separate, and appoint to and from Command Sergeant Major, Army National Guard (ARNG) and Army National Guard of the United States (ARNGUS) enlisted Soldiers. 3. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Title 38 U.S. Code, section 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, section 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. 6. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 8. 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). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 9. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 10. 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 UOTHC 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. 11. 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, or sexual harassment. Boards are 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. 12. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of 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) AR20230000803 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1