IN THE CASE OF: BOARD DATE: 5 September 2023 DOCKET NUMBER: AR20230002509 APPLICANT REQUESTS: • reconsideration of her previous request(s) for referral to the Physical Disability Evaluation System (PDES) to determine whether she should have been medically retired vice discharge from the U.S. Army Reserve (USAR) • personal appearance before the Board via telephone or video APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Chronological Record of Medical Care • Department of Veterans Affairs (DVA) letter, 10 April 2017 • Medical documents St. Vincent Infirmary FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Dockets Number • AR20130004907 on 25 February 2014 • AR20150003670 on 20 October 2015 2. The applicant states she was denied disability previously although she has had current ailments upon discharge because she was allowed to commission into the reserves although it was short lived. She did not receive a thorough exam because she was previously on active duty. She found in her medical records which are now included to show she should have been med boarded long before her discharge date. Her issues have continued to progress. 3. The applicant enlisted in the Regular Army on 12 May 1998. She held military occupational specialty 92Y (Unit Supply Specialist). She had several periods of reenlistments and had several leadership positions. 4. She served in Bosnia from 12 March 1999 – 1 October 1999. 5. She was issued a “P2” profile on 22 September 2004, for chronic lower back pain, bilateral plantar fasciitis. 6. The applicant provides Chronological Record of Medical Care dated 28 October 2008, which shows her provider noted after further review of her profile and medical record the P2 profile that was issued in 2004 was flawed. As it currently stands the permanent profile that was issued as a P2 is actually a P3 (because of the questions that are marked NO in the first section) and would result in, MEB (medical evaluation board). However, because she has not recently been seen PT, PM or pain management or had any recent imaging studies, provider was unable to make any determinations about if a P3 is needed at this time. 7. On 29 November 2010, her commander counseled her in reference to her family care plan (FCP). She was to present her FCP no later than 29 December 2010. 8. She was counseled again on 3 January 2011, for not meeting the requirement to complete her FCP within the time allotted 29 November-29 December 2010. She was flagged for any favorable action and recommended for chapter 5, paragraph 5-8 under the provisions (UP) of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). 9. On 4 January 2011, her immediate commander-initiated action to separate her for involuntary separation due to parenthood. The reason for the proposed action is that she failed to obtain a FCP in the prescribed time. The applicant acknowledged receipt of notification of discharge pending against her. 10. On an unspecified date she was advised by consulting counsel of the basis for the contemplated action to separate her for reasons under AR 635-200, chapter 5, and its effects; of the rights available to her; and of the effect of any action taken by her in waiving her rights. • she waived consideration of her case by an administrative separation board provided her characterization is honorable • she did not submit statements on her own behalf 11. On an unspecified date her chain of command recommended that she be separated with an honorable character of service UP of AR 635-200, paragraph 5-8 prior to the expiration of her current term of service. 12. On 24 January 2011, the separation authority directed the applicant be honorably discharged UP of AR 635-200, paragraph 5-8, for involuntary separation due to parenthood. 13. On 17 April 2011, she was honorably discharged UP of AR 635-200, paragraph 5-8 for parenthood. 14. She was commissioned as a Reserve Officer on 25 May 2012 in the USAR. 15. Orders D-12-217312, issued by U.S. Army Human Resources Command, Fort Knox, KY, on 3 December 2012, shows she was discharged from the USAR in accordance with AR 135-175 (Army National Guard and Army Reserve - Separation of Officers). 16. In a telephone conversation with a Board analyst on 18 February 2014, a representative from HRC stated according to the Officer Special Action Branch, “the applicant voluntarily requested to resign her commission” in the USAR. There is no indication she was separated from the USAR due to medical reasons. 17. In her previous request (AR20130004907) on 25 February 2014, she requested that she be referred to the Physical Disability Evaluation System (PDES) to determine whether she should be medically retired rather than discharged. After reviewing the application and all supporting documents, the Board determined relief was not warranted. 18. In her reconsideration request (AR20150003670) on 20 October 2015, the applicant requested reconsideration of her previous request that she be referred to the PDES to determine whether she should have been medically retired vice discharged from the U.S. Army Reserve (USAR). After reviewing the application and all supporting documents, the Board determined relief was not warranted. 19. The applicant also provides: a. DVA letter, 10 April 2017, showing: • degenerative arthritis of the cervical spine; intervertebral disc syndrome rated at 20% effective 27 June 2016 • acromioclavicular joint osteoarthritis claimed as shoulder condition right rated at 20% effective 27 June 2016 • right cervical radiculopathy with carpal tunnel (previously rated as right upper extremity carpal tunnel syndrome, status post right carpal tunnel release (previously rated as DC 8715 carpal tunnel syndrome, right) rated at 20% effective 27 June 2016 • left cervical radiculopathy with carpal tunnel (previously rated as carpal tunnel syndrome left) rated at 20% effective 27 June 2016 • her overall rating was 70% effective 18 April 2011, 90% effective 9 October 2012, 80% effective 31 December 2013, and 100% effective 27 June 2016 b. Medical documents from St. Vincent Infirmary showing a diagnosis of acute right-sided back pain with sciatica. 20. 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. 21. 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. 22. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the DVA, 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 DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 23. 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 again applying to the ABCMR requesting, in essence, a referral to the Disability Evaluation System (DES). She states: “I am resubmitting because I was denied disability previously although I have bad current ailments upon discharge because I was allowed to commission into the reserves although it was short lived. I did not receive thorough exam because I was previously active duty. I found in my medical records which are now included to show I should have been med boarded long before discharge date. My issues have continued to progress; I am begging the board for reconsideration.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Her DD 214 for the period of Service under consideration shows she reentered the regular Army on 12 May 1998 and received an honorable discharge on 17 April 2011 under provisions provided in paragraph 5-8 of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009): Involuntary separation due to parenthood. d. This request was previously denied in full by the ABCMR on 25 February 2014 (AR20130004907) and again on 20 October 2015 (AR20150003670). Rather than repeat all their findings here, the board is referred to the record of proceedings for those cases. This review will concentrate on the new evidence submitted by the applicant. e. Paragraph 5-8 of AR 635-200: • Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities. (See AR 600–20, chapter 5, concerning Soldiers’ responsibilities for care of family members as related to military responsibilities.) Specific reasons for separation because of parenthood include— • Inability to perform prescribed duties satisfactorily. • Repeated absenteeism. • Repeated tardiness. • Inability to participate in field training exercises or perform special duties such as CQ and staff duty noncommissioned officer (NCO). • Non-availability for worldwide assignment or deployment according to the needs of the Army. f. A 28 October 2008 AHLTA encounter shows that during what appears to have been a records review without the applicant present, it was discovered she had been given a duty limiting permanent profile in 2004. It contained several limitations of her functional Soldier activities but had a serial of 2 denoting minor limitations only. It is the physical profiles with a serial of a 3 or 4 which result in a referral to the DES. Now that the error was found, the providers agreed the applicant needed to be reevaluated as this profile was four years old and it appears she had continued to serve successfully despite the profile. g. On 29 November 2010, the applicant, a sergeant first class at the time, was counseled by her company commander on her lack of a family care plan as required by regulation. The senior noncommissioned officer was given 30 days to correct this deficiency. She agreed with this counseling. h. The then senior noncommissioned officer failed to produce a family care as ordered and on 29 December 2010 her company commander informed her of his initiation of action to separate her for Involuntary Separation Due to Parenthood: “The reason for my proposed action is that you failed to obtain a family care plan in the prescribed time.” i. The brigade commander directed her separation under paragraph 5-8 of AR 635-200 on 24 January 2011, noting that “IAW AR 635-200, Paragraph 1-35b(8)(i), the Soldier is ineligible for transferred to the IRR [Individual Ready Reserve].” This may have been a typo or from a change message not available for review. Paragraph 1-35b(8)(a) of AR 635-200 (17 December 2009) states Soldiers with a remaining military service obligation (MSO) are ineligible for transfer to the IRR when they are involuntarily administratively separated for parenthood. j. The applicant’s final NCO Evaluation Report (NCOER) found in iPERMS was an annual period from 1 March 2010 thru 28 February 2011. It shows the applicant was a successful Soldier during the rating period. It shows she passed her Army Physical Fitness Test on 12 November 2010 and this alone speaks against her having duty limiting physical limitations. Her rater top-blocked her as “Among the Best.” Her senior rater top-blocked her with a 1 on a scale of 1 to 5 for ”Overall Performance” and marked with a 2 for “Overall Potential” opining: • promote to MSG with peers • send to SLC [Senior Leader Course} now • possesses great potential for future service • continue to groom and develop this NCO for continued service at the next higher grade k. There is no probative evidence the applicant had any 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 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 her records in JLV shows she has been awarded multiple VA service-connected disability ratings, including ratings for flat foot condition, neurosis, complication of pregnancy, eczema, and 3 related to her lumbar spine. However, the DES compensates an individual only 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 that a referral of her case to the DES remains unwarranted. 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 not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The applicant is requesting a disability separation vice her USAR discharge. The Board reviewed and was persuaded by the medical official’s finding no probative evidence the applicant had any 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 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. Based on the evidence, the Board determined the applicant’s referral to the disability evaluation system remains unwarranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: xx: 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 to amend the decision of the ABCMR set forth in Docket Number AR20130004907 on 25 February 2014 and AR20150003670 on 20 October 2015. 9/5/2023 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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 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. 2. AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-8 provides for the involuntary separation of Soldiers due to parenthood. It states, Soldiers will be considered for involuntary separation when parental obligations interfere with fulfillment of military responsibilities and that notification procedures will be used. 3. AR 135-175 (Army National Guard and Army Reserve Separation of Officers) prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army. Chapter 6 prescribes the means and procedures governing the submission of resignations which may be submitted by Reserve officers of the Army. Voluntary requests for resignation under this regulation may be accepted only from a member who is mentally competent at the time he/she submits such request. For determination as to medical conditions, provisions of paragraph 2–6, of this regulation, will apply. 4. Title 10, U.S. Code, Section 1201 provides for the physical disability retirement of a member who has either 20 years of service or a disability rating of 30% or greater. 5. 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 at less than 30%. 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, 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. 9. 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. 10. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 11. 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. 12. 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. 13. 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. //NOTHING FOLLOWS//