IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20230000858 APPLICANT REQUESTS: in effect, physical disability separation or retirement in lieu of honorable discharge due to condition, not a disability. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Rating Decision, 10 October 2018 * VA letter, 18 October 2018 * VA letter, 21 October 2022 * VA Rating Decision, 11 January 2023 * VA letter, 13 January 2023 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: a. Her reason for separation should be changed to disability. She received a 20 percent disability rating from the VA with an effective date of 18 April 2022. She submitted a claim to increase these benefits on 7 October 2022, which as of the date of her application submission to the ABCMR was still pending. b. She would like to continue to serve this country by continuing her education and becoming a nurse. AS of now, she does not qualify for the GI Bill because of her reason for separation as stated on her DD Form 214. She had planned on bettering herself through education by joining the Army. She appreciates the Board’s time. 3. A DD Form 2808 (Report of Medical Examination), dated 23 May 2017, shows the applicant underwent medical examination on the date of the form for the purpose of Army enlistment and was found qualified for enlistment with a physical profile rating of “1” in all factors. 4. The applicant enlisted in the Regular Army on 26 April 2017. 5. A U.S. Army Medical Department Activity (USA MEDDAC) Fort Jackson, SC, memorandum, dated 14 February 2018, shows the following: a. A physical therapist at the Physical Therapy Clinic, McWethy Troop Medical Clinic (TMC), stated the applicant had been under the care of the Physical Therapy Clinic at the TMC while in Basic Combat Training (BCT) for B femoral neck stress injuries sustained as a result of the impact stresses from normal physical activities required in training (marching, running, jumping). This diagnosis was confirmed by bone scan. b. The applicant was deemed unfit to continue serving in the U.S. Army and will not be sent on convalescent leave, but will be provided with restrictive profiling to prohibit training activities and protect the injury from progressing. Because this injury is a factor of overuse, loading, and impact, separation from the military will be in the Army’s and the Soldier’s best interest at this time. The applicant needed more time to heal and then develop improved tolerance for impact related activity through a progressive strengthening and reconditioning program to be able to tolerate the stresses of initial military training. c. For the reasons states above, the applicant was not a Warrior Training and Rehabilitation Program (WTRP) candidate and did not meet the criteria for an existed prior to service (EPTS) separation. She would also not require further medical management once she was removed from the IMT environment; therefore a Medical Evaluation Board (MEB) was not necessary. It was therefore recommended the applicant receive a separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 or other administrative separation if indicated. 6. A DA Form 4856 (Developmental Counseling Form) shows the applicant was counseled by her company commander on 15 February 2018, regarding the initiation of her separation under the provisions of Army Regulation 635-200, paragraph 5-17, due to having been found medically unfit for continued military service based on her diagnosed condition of femoral neck stress injuries. Her injuries impaired her abilities to function during training; therefore her physician recommended her removal from training. 7. On 3 April 2018, the applicant’s immediate commander notified her that he was initiating action to honorably separate her under the provisions of Army Regulation 635-200, paragraph 5-17, for to other designated physical or mental conditions, because she was unable to meet the minimum standards to graduate from BCT due to her diagnosis of femoral neck stress injuries. She was advised of her right to consult with counsel and submit written statements in her behalf. 8. On 3 April 2018, the applicant acknowledged receipt of the notice from her commander of his initiation of action to separate her under the provisions of Army Regulation 635-200, paragraph 5-17, and the right available to her, to include her right to consult with counsel prior to submitting her election of rights. On the same date, the applicant acknowledged having been advised by consulting counsel of the basis for the contemplated action to separate her, its effects, and the rights available to her. She did not submit statements in her own behalf and she waived consulting counsel and representation 9. On 3 April 2018, the applicant’s battalion commander recommended approval of the applicant’s honorable separation from the Army prior to her expiration term of service under the provisions of Army Regulation 635-200, paragraph 5-17. 10. On 10 April 2018, the approval authority directed the applicant’s honorable separation under the provisions of Army Regulation 635-200, paragraph 5-17, due to other designated physical or mental conditions. 11. The applicant’s DD Form 214 shows on 17 April 2018, she was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17, due to a condition not a disability. She was not awarded an MOS and was credited with 9 months and 22 days of net active service this period. 12. A VA Rating Decision, dated 10 October 2018, shows the applicant was granted a combined service-connected disability rating of 20 percent effective 18 April 2018, for the following conditions: * residuals, bone stress injuries of the left hip, (thigh impairment), 10 percent * residuals, bone stress injuries of the right hip, (thigh impairment), 10 percent * residuals, bone stress injuries of the left hip (limitation of extension), 0 percent * residuals, bone stress injuries of the left hip (limitation of flexion), 0 percent * residuals, bone stress injuries of the right hip (limitation of extension, 0 percent * residuals, bone stress injuries of the right hip (limitation of flexion), 0 percent 13. A VA letter, dated 21 October 2018, shows the applicant’s combined service- connected disability rating remained at 20 percent. 14. A VA Rating Decision, dated 11 January 2023, shows the applicant was granted a combined service-connected disability rating of 50 percent effective 7 October 2022, for the following conditions * residuals, bone stress injuries of the left hip, (thigh impairment), 20 percent * residuals, bone stress injuries of the right hip, (thigh impairment), 20 percent * residuals, bone stress injuries of the left hip (limitation of flexion), 10 percent * residuals, bone stress injuries of the right hip (limitations of flexion), 10 percent * residuals, bone stress injuries of the left hip (limitation of extension), 0 percent * residuals, bone stress injuries of the right hip (limitation of extension), 0 percent 15. 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. 16. Title 38, USC, 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. 17. 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. 18. 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/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 in essence requesting a referral to the Disability Evaluation System (DES). She states: “I have received a 20% disability rating by the VA. Effective date 4/18/22. I summited a claim to increase these benefits on 10/7/22- still pending. I would like to continue my service to this country by continuing my education and become a nurse. As of now, I do not qualify for the GI Bill because [of what] is stated on my DD 214, according to the education department. I planned on bettering myself by joining the Army.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows she entered the regular Army on 26 June 2017 and was honorably discharged on 17 April 2018 under authority provided by paragraph 5-17 of AR 635-200, Active Duty Enlisted Administrative Separations (19 December 2016): Other designated physical or mental conditions. d. Paragraph 5-17a of AR 635-200: Commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to— (1) Chronic airsickness. (2) Chronic seasickness. (3) Enuresis. (4) Sleepwalking. (5) Dyslexia. (6) Severe nightmares. (7) Claustrophobia. (8) Other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the soldier’s ability to effectively perform military duties is significantly impaired. e. The applicant’s pre-entrance Report of Medical History and Report of Medical Examination show she was in good health, without significant medical history or conditions other than mild, asymptomatic, papular acne on her back. f. The EMR shows she was first seen for left lower extremity pain early on 19 July 2017. A bone scan later that day revealed diffuse stress injuries in her pelvis and both lower extremities: “1. Focal areas of intense increased radiotracer activity are noted at the left- sided inferior pubic ramus, at the left-sided puboacetabular junction, at the bilateral femoral necks, and at the left-sided lesser trochanter, and are concerning for underlying stress fractures. 2. Focal areas of intense increased radiotracer activity are identified at the bilateral calcanei and at the bilateral medial tibial plateaus [tibial side of knee] and are concerning for underlying stress fractures. 3. Focal areas of moderately increased radiotracer activity are noted at the bilateral medial femoral condyles [femoral side of the knee] and in the region of the bilateral tibial plafonds [tibial side of the ankle] and is suggestive of underlying moderate stress injuries. 4. Focal areas of mildly increased radiotracer activity are noted at the medial aspects of the bilateral mid tibial diaphysis [aka tibial shaft / mid-section] and is suggestive of underlying mild stress injuries.” g. The applicant’s conservative treatment over the next serval months included limited duty, Tylenol, Tramadol, oral calcium supplements, oral vitamin D supplements, and physical therapy. Her femoral neck stress injuries improved and the remainder of these stress injuries healed over the next 6 months. From the 22 January 2018 MRI of her hips her hips: “Interval improvement in minimal persistent bone marrow edema involving the bilateral femoral necks.” h. The unfortunate failure of the complete healing of her femoral neck stress injuries precluded her return to full duty. The applicant’s physical therapist (CPT ) recommended she be discharged under paragraph 5-17 of AR 635-200 in a 14 February 2018 memorandum to her commander: “PV2 [Applicant] has been under care of the Physical Therapy Clinic at the TMC [Troop Medical Clinic] for bilateral femoral neck stress injuries … This Soldier has been deemed unfit to continue serving in the U.S. Army and so will not be sent on convalescent leave but will be provided with restrictive profiling to prohibit training activities and protect the injury from progressing. Because this injury is a factor of overuse, loading, and impact, separation from the military will be in the Army's and the Soldier's best interest at this time. This Soldier needs more time to heal and then develop improved tolerance for impact related activity through a progressive strengthening and reconditioning program to be able to tolerate the stresses of Initial Military Training (IMT). For the same reasons as stated above, this Soldier is not a WTRP [Warrior Training and Rehabilitation Program] candidate and does not meet criteria for an EPTS [existed prior to service] separation. They also will not require further medical management once they are removed from the IMT environment and so a Medical Evaluation Board (MEB) is not necessary. I therefore recommend they receive a Chapter 5-17 separation or other administrative separation if indicated.” i. The WTRP, previously known as physical training and rehabilitation program (PTRP), provides a modified basic combat training (BCT) and/or one station unit training (OSUT) environment designed to return Soldiers to regular initial military training programs with higher levels of motivation, fitness, training, and education than when they entered, while providing them the quality health care they need to rehabilitate their injuries. Given her continued symptoms and abnormally low bone density, she would not have been a good candidate for this program Her company commander counseled her on a 5-17 discharge on 15 February 2018: “PVT [Applicant], due to your condition, you have been found medically unfit for continued military service based on the Physical Therapist physician who evaluated you. It's been determined that you be separated from the Army under Chapter 5-17 IA WAR 635-200. I agree with the doctor's findings which states, "Femoral Neck Stress Injuries." Your injuries have impaired your abilities to function during training, therefore you have been recommended to be removed from training by your physician. It is in the best interest of the Army as well as yourself that you are immediately removed from basic training due to your condition. Good Luck in your future endeavors.” j. The applicant agreed with the counseling without remark. k. On 3 April 2018, her company commander informed her of his initiation of separation action under paragraph 5-17 of AR 635-200: “The reasons for my proposed action are: You are unable to meet the minimum standards to graduate Basic Combat Training due to your Femoral Neck Stress Injuries diagnosis.” l. The brigade commander approved the recommended separation action on 10 April 2018. m. Her remaining stress injuries did not constitute a permanent disability IAW AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017). Given the nature of these injuries and the treatment thereof in a healthy individual, they would be expected to heal once she was removed for the rigors of military training. It is the opinion of the ARBA medical advisor that a referral to the DES is warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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 a referral to the DES is warranted. The Board determined DES compensates an individual only for service incurred 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. Based on the preponderance of evidence and medical opine, the Board granted partial relief. 2. The Board agreed the VA applies its own polices and regulations to make service connection and rating determinations. It is not bound by determinations made by the Army. With that, unlike the VA, the Army’s determination of fitness and its mandatory application of VA ratings is a snapshot in time whereas the VA can make service connection and rating determinations throughout the veteran’s life. The VA provides post-service support and benefits for service-connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service-connected disabilities 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 that the evidence presented was 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 by directing the applicant be entered into the Disability Evaluation System (DES) and a Medical Evaluation Board concerned to determine whether the applicant’s conditions(s), met medical retention standard at the time-of-service separation. a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned may be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB if requested by or agreed to by the PEB president. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to physical disability separation or retirement in lieu of honorable discharge due to condition, not a disability. 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. 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 a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 Physical Evaluation Board (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. 3. Army Regulation 635-40 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. 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. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 4. 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. 5. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-17 states a service member may be separated for other designated physical or mental conditions that potentially interfere with assignment to or performance of duty. not amounting to disability under Army Regulation 635-40 and excluding conditions appropriate for separation processing under paragraphs 5-11 (Separation of personnel who did not meet procurement medical fitness standards) or 5-13 (Separation because of personality disorder) Such conditions may include, but are not limited to, the following: * chronic airsickness * chronic seasickness * enuresis * sleepwalking * dyslexia * severe nightmares * claustrophobia * other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired b. When a commander determines a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or a mental status evaluation in accordance with Army Regulation 40-501. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. c. Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. A Soldier being separated under this section will be awarded a character of service of honorable, under honorable conditions, or uncharacterized if in an entry-level separation. An under honorable conditions characterization of service which is terminated under this paragraph is normally inappropriate. 6. 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. 7. 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. 8. Title 10, U.S. Code, section 1556 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000858 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1