IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230002014 APPLICANT REQUESTS: * correction of his records to show he was discharged due to a medical disability * personal appearance before the Board 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) for the period 29 November 2013 to 16 September 2014 * U.S. Army Reserve (USAR) discharge orders * 13-page personal statement FACTS: 1. The applicant states, in effect: a. They did his entire medical discharge process in a rush. His case worker helped his former unit to get him out and did not really help him with the process and she did not have him go before the medical board so that he could get a military rating for his disability. His former unit did not want him to get promoted. He suffers from fibromyalgia and they knew that when he arrived at the unit. b. The advance team did not have all the equipment for the mission, nothing was set up, and the officer in charge (OIC) did not know what he was doing. They had a dental technician or assistant as the noncommissioned officer (NCO) in charge. The general in charge keep changing his mind every day about the protocol for their clinic but they had no real reason for the constant changes and confusion. They also disrespected the NCO and the OIC and did nothing about it to fix or correct their actions. They were racist and made it difficult for him to go to school. He did not think promotions were in his future because he suffers from fibromyalgia. 2. The applicant enlisted in the Army National Guard (ARNG) on 24 April 2012. His DD Form 214 shows he served in Kuwait from 19 January to 10 August 2014. 3. The applicant's National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he was discharged from the ARNG and transferred to the USAR Control Group (Annual Training) on 23 April 2018. The NGB Form 22 further shows he was discharged for end of term of service (ETS) and his transfer to the USAR was for the purpose of completing a 2-year statutory obligation. 4. Orders issued on 27 March 2020 directed the applicant reassignment (voluntary) from the USAR Control Group (Reinforcement) to the 7379 Blood Detachment effective 23 March 2020. 5. On 7 October 2020, the applicant's enlistment was extended for a period of six months under the authority of Army Regulation 140-111 (USAR Reenlistment Program), Table 3-1, Rule O, which pertains to Soldier participating in a documented weight reduction program and making satisfactory progress to meet the body fat content requirements of Army Regulation 600–9 (The Army Wight Control Program). His new ETS was established as 23 Amy 2021. 6. Orders issued on 20 January 2021 directed the applicant's discharge from the USAR effective 20 February 2021 under the authority of Army Regulation 135-178 (ARNG and USAR Enlisted Administrative Separations). 7. The applicant provided a 13-page personal statement in which he states he was told addressed a number of issues that include Department of Veterans Affairs (VA) compensation, his medical discharge, delayed pay, racism at his former unit, drill pay and VA pay, and his medical condition of fibromyalgia. The complete 13-page statement was provided to the Board for their review and consideration. 8. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, 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 in essence a referral to the Disability Evaluation System (DES). He states: “They did my entire medical discharge process in a rush and my case worker helped and worked with my former unit to get me out and did not really help me with the process and she did not have me go before the medical board or Surgeon General so that I could get a military rating for my disability and why I couldn't stay in the military. Because my former unit did not want me to get promoted even though I have Fibromyalgia and they knew that when I came to the unit.” c. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. Orders published by the 99th Readiness Division (USAR) show this former drilling USAR Soldier was honorably discharged on 20 February 2021 under provisions in paragraph 14-1k of AR 135-178, Enlisted Administrative Separations. The reason for discharge was “Soldier was found Unfit for Retention IAW AR 40-501 [Standards of Medical Fitness].” d. MEDCHART contains multiple physical profiles for the applicant. The most recent, and therefore the one applicable at the time of his separation, shows that on 23 September 2020 the applicant was placed on permanent duty limitations for two conditions: Diabetes Mellitus requiring oral medication and “Lower back/Tailbone Injury/Pain. The profile shows a non-duty of having a shaving profile for ingrown facial hairs/razor bumps. e. His diabetes failed the medical retention standards in chapter 3 of AR 40-501 because it required oral medication (paragraph 3-29d(2)), and his low back injury failed medical retention standards because it limited his ability to perform the several of the functional activities required of all Soldier (paragraph 3-20h). f. Because the applicant was a drilling member, it is a near certain impossibility that his diabetes was incurred or permanently service aggravated while entitled to base pay, i.e., in the line of duty. There is also no evidence his low back condition was duty related. The two affirmative line of duty determinations in MEDCHART are for an ankle sprain and contusions of his right foot/toes. g. In a 20 July 2018 Veterans Hospital Administration Physical Medication and Rehabilitation Consult, the applicant was evaluated for multiple areas of pain. The physician felt the applicant had “regional myalgia [myofascial pain] and somatic dysfunction.” The applicant was later diagnosed with fibromyalgia in either late 2020 of early 2021. There is no evidence this condition was incurred in the line of duty and it was not noted as a duty limiting medical condition on his permanent physical profile. h. There is no evidence the applicant had any duty incurred medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Thus, there was no cause for a referral to the Disability Evaluation System. i. Review of his records in JLV shows he has been awarded five VA service- connected disability ratings, none of which were on his permanent physical profile: Major depressive disorder, Fibromyalgia, Limited motion or right arm, Limited motion of right ankle, Limited motion or left ankle. 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. j. It is the opinion of the Agency Medical Advisor that a referral of his case to the DES in 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/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, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding referral of his case to the DES in not warranted. The medical opine found insufficient evidence the applicant had any duty incurred medical condition which would have failed the medical retention standards. The Board noted, the applicant has been awarded five VA service-connected disability ratings, none of which were on his permanent physical profile: The Board recognized the applicant’s request for referral to the DES for medical disability, however it is without merit and relief was denied. 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. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, 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. 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, 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 (Disability 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. 2. 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. 3. Army Regulation 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 Army Regulation 635–40 with the following caveats: a. U.S. Army Reserve (USAR) or Army National Guard (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 and chapter 10 of this regulation. b. Reserve Component Soldiers pending separation for In the Line of Duty injuries or illnesses will be processed in accordance with Army Regulation 40-400 (Patient Administration) and Army Regulation 635-40. c. Normally, Reserve Component Soldiers who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 (USAR Assignments, Attachments, Details, and Transfers) or discharged from the Reserve Component per Army Regulation 135–175 (Separation of Officers), Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative Separations), or other applicable Reserve Component regulation. They will be transferred to the Retired Reserve only if eligible and if they apply for it. d. Reserve Component Soldiers who do not meet medical retention standards may request continuance in an active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reserve Component Soldiers with non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. 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 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002014 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1