IN THE CASE OF: BOARD DATE: 4 October 2023 DOCKET NUMBER: AR20230003467 APPLICANT REQUESTS: in effect, a medical retirement. 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) Disability Ratings * Radiology Report dated 29 October 2022 * Medical Records (184 pages) FACTS: 1. The applicant states her current narrative reason for separation indicates, “Condition, not a disability,” however, the VA considers it a disability and she would like her narrative reason for separation corrected. She believes the records are unjust because nothing was to done to identify what was wrong. She was told for almost three years that nothing was wrong and in October 2022, following her MRI, she was informed by the VA she has arthritis in her back in addition to another issue. She recalls asking her provider for an MRI and was told it would be a waste of the Army’s money and instead was sent to physical therapy for 3 to 4 sessions before being told she was going to be discharged. She did her research following her separation and found out that she should have been sent to the physical evaluation board (PEB). She now experiences pain daily because the military failed to do what they were supposed to do. Since being provided with her ratings from the VA and based on her research, she believes she should have been medically retired. 2. The applicant provides: a. Her DD Form 214 for her active service from 14 January 2020 through 29 July 2021, to be referenced in the service record. b. A screen shot of her VA disability ratings shows she has a combined service connected disability rating of 90% for the following: * post-traumatic stress disorder (PTSD) – 70% * thoracolumbar spine strain with scoliosis – 20% * tinnitus – 10% * strain, right hip – 10% * strain, left hip (limitations) – 0% * right knee strain – 10% * strain, right hip (limitations) – 0% * strain, left hip – 10% * strain, left hip (extension) – 0% * strain, right hip (extension) – 0% c. The applicant’s medical records for treatment received include the following: * Radiology Report dated 29 October 2022 * Medical Records (184 pages) 3. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 14 January 2020. b. On 6 September 2019, the applicant underwent medical evaluations for the purpose of enlistment which indicated she was generally in good health with no significant medical history. The applicant was marked qualified for service. * DD Form 2807-1 (Report of Medical History) * DD Form 2808 (Report of Medical Examination) c. Her Enlisted Record Brief, dated 16 September 2021, did not indicate the applicant had permanent profile limitations. d. The applicant underwent an additional medical evaluation for the purpose of separation. She indicated she was “worse” for overall health in comparison to her prior medical assessment. The applicant listed numerous challenges with her health and the physician did annotate she had scoliosis, abdominal pain, and right knee pain among other comments. She was marked qualified for service. * DD Form 2697 (Report of Medical Assessment) dated 13 April 2021 * DD Form 2807-1 dated 13 April 2021 * DD Form 2808 dated 5 May 2021 e. A DA Form 3822-R (Report of Mental Status Evaluation), dated 12 January 2007, confirmed the applicant was referred for a mental evaluation because she was being considered for discharge. The physician noted in the remarks, the applicant no behavioral health diagnosis. The evaluation further indicated: * screening was performed for PTSD, depression, traumatic brain injury, substance abuse and sexual trauma * normal behavior and cognition, not impaired * normal impulse and perception, not impaired * no concerning findings; no elevated risk of harm to self or others * met the criteria for Chapter 5-13/17 administrative; met medical retention standards * had not deployed * no evidence of documented change in diagnosis from a boardable to a non- boardable condition within the past 90 days f. The applicant’s immediate commander notified the applicant of his intent to separate her under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 5-17, for other designated physical or mental conditions. She acknowledged receipt of the notification of separation action on 17 May 2021. g. On 20 May 2020, after consultation with legal counsel, she acknowledged: * the rights available to her and the effect of waiving said rights * she may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to her * she may apply to the Army Discharge Review Board or the ABCMR for upgrading * she may be ineligible to apply for enlistment in the U.S. Army for a period of up to 2 years following discharge h. The immediate commander initiated separation action against the applicant for other designated physical or mental conditions. The commander indicated that this action was based on the applicant having recurring back pain since June 2020 that interfered with her ability to perform her duties. The commander recommended an honorable discharge. She had been moved to a different area of operation and underwent physical therapy; however, she had not shown any improvement. i. On 1 June 2021, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 5-17, for other designated physical or mental conditions. She would be issued an honorable discharge. j. Orders 159-0005, dated 8 June 2021, discharged the applicant from active duty with an effective date of 29 July 2021. k. She was honorably discharged from active duty on 29 July 2021. Her DD Form 214 shows she completed 1 year, 6 months, and 16 days of active service with no lost time. She was assigned separation code JFV and the narrative reason for his separation listed as “Condition, Not a Disability.” 4. The applicant's service record was void of documentation that shows she was treated for an injury or an illness that warranted entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication she underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 5. By regulation (AR 635-200), action will be taken to separate a Soldier for other physical or mental conditions not amounting to disability (AR 635-40) and excluding conditions appropriate for the separation processing under paragraph 5-11 or 5-13 that potentially interfere with assignment to or performance of duty. 6. By regulation (AR 635-8), the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 7. By regulation (AR 635-5-1), separation program designator (SPD) codes are three- character alphabetic combinations that identify reasons for, and types of, separation from active duty. The narrative reason for the separation will be entered in block 28 of the DD Form 214 exactly as listed in tables 2-2 and 2-3. Table 2-3 lists for SPD code “JFV” the narrative reason as “Condition, Not a Disability,” by regulatory authority AR 635-200, paragraph 5-17. 8. By regulation (AR 40-501), medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects are causes for rejection or medical unfitness for these specialized duties. If the profile is permanent the profiling officer must assess if the Soldier meets retention standards. Those Soldiers on active duty who do not meet retention standards must be referred to a medical evaluation board. Once a determination of physical unfitness is made, disabilities are rated using the VA schedule of disability rating. 9. By regulation (AR 635-40), 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. Paragraph 3-4 states 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: a. 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. b. 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. 10. 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. 11. Title 38, United States 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. 12. Title 38, Code of Federal Regulations, 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/her 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. 13. 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 believe my military records are unjust because of the fact nothing was done to figure out what was wrong. After being told for almost 3 years (from 2020) that nothing was wrong, I found out in October of 2022 when I got an MRI from the VA, that I have arthritis and something else about something pushing out my back. Out of all my time in service I received only 2 x-rays of my middle back after I complained about back, hips and knee pain. I asked my provider for an MRI at one of my visits and he told me it would be a waste of the Army time and money to give me an MRI. I went through physical therapy only did about 3 or 4 sessions. I was told for almost 3 years that nothing was wrong with me and nothing was done to find out what was happening other than being given countless medication. On top of all of that, I was not properly discharged.” 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 14 January 2020 and was discharged on 29 July 2021 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. f. The EMR shows the applicant was seen for a five-month history of low back pain on 28 July 2020: “19-year-old active-duty service member with complaints of mid lower back pain since AIT [advance individual training] in February. Patient states she was seen once and provided NSAIDs, Tylenol, and muscle relaxers with improvement however since arriving in Korea notable continuation of lower back pain intermittently with physical activity.” g. The condition was treated conservatively. She was seen again for low back pain on 11 August 2020. Radiographs obtained on 12 August 2020 revealed the applicant had a pre-existing thoracolumbar curve. A scoliosis survey obtained on 27 August 2020 showed a “mild S-shaped scoliosis with right convex curvature centered at T9 which measures approximately 13 degrees and compensatory left convex curvature centered at L2 measuring approximately 9 degrees. No vertebral body anomalies.” h. The applicant continued with conservative treatment, to include physical therapy. However, her symptoms persisted. i. The applicant completed her pre-separation medical examination on 5 May 2021. The provider documented a mild scoliotic curve with paraspinal muscle tenderness to palpation and a normal neuromuscular examination. He listed scoliosis as a diagnosis, stated she met the medical retention standards of AR 40-501, Standards of Medical Fitness, and cleared for separation from the Army j. O/A 17 May 2021, his company commander informed him of the initiation of separation action under paragraph 5-17 of AR 635-200: “The reasons for my proposed action are: You have been having reoccurring back pain since June of 2020 that interferes with your performance of your duties. You have been moved to a different area of operation and have had physical therapy for your pain but have not shown any improvement.” k. The brigade commander approved the recommended discharge on 1 June 2021. l. From “Adolescent Idiopathic Scoliosis: Natural History and Long-Term Treatment Effects” authored by M.A. Asher D.C. Burton, and published in Scoliosis and Spinal Disorders on 31 March 2006: “Back pain prevalence is significantly higher than control populations. [22, 39] However, back pain severity and duration may [39] or may not be increased [21, 22]. Pain severity does not correlate with curve size [21, 39]. Curve pattern may be associated with increased pain [23]. When related, thoracolumbar curves seem the most [24, 34] and double curves the least [34] likely to be associated with increased pain. Arthritic changes are not associated with increased pain [22] whereas translatory shift in the thoracolumbar spine may be. [24] … Most patients with untreated adolescent idiopathic scoliosis function at or near normal levels, even though pain is more prevalent.” (https://scoliosisjournal.biomedcentral.com/articles/10.1186/1748-7161-1-2) m. Her pre-existing scoliosis did not constitute a permanent disability IAW AR 635- 40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017). Given the nature of this condition and the treatment thereof in a healthy individual, it would be expected to return to baseline once she was removed for the rigors of military training. n. Had she been referred to the DES, she likely would have been separated without benefits for a pre-existing condition which became symptomatic in AIT. o. There is insufficient probative evidence the applicant had a compensable service incurred condition or other 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. p. Review of her records in JLV shows he has been awarded multiple VA service- connected disability ratings, including a 20% disability rating for “Lumbosacral or cervical strain”. 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. q. It is the opinion of the ARBA medical advisor that a referral to the DES 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 medical review, the Board concurred with the advising official finding that a referral to the DES is not warranted. It was noted by the opine there is insufficient probative evidence the applicant had a compensable service incurred condition or other medical condition which would have failed the medical retention standards. Additionally, the Board noted the applicant’s pre-existing scoliosis did not constitute a permanent disability IAW AR 635-40, Physical Evaluation for Retention, Retirement, or Separation. 2. In review of the applicant’s record, the Board noted based on the medical review, if the applicant had been referred to the DES, she likely would have been separated without benefits for a pre-existing condition which became symptomatic in AIT. The Board recognized the applicant’s request for referral to the DES for a medical health condition, however it is without merit. Based on the preponderance of evidence, 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. Army Regulation 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 applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. Chapter 5-17 of the regulation states a Soldier may be separated for other physical or mental conditions not amounting to disability (AR 635-40) and excluding conditions appropriate for the separation processing under paragraph 5-11 or 5-13 that potentially interfere with assignment to or performance of duty. Unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status. 3. Army Regulation 635-8 (Separation Processing and Documents), states the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. Block 28 (Narrative Reason for Separation) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 4. Army Regulation 635-5-1 (Separation Program Designator Codes), provides separation program designator (SPD) codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty. The narrative reason for the separation will be entered in Block 28 of the DD Form 214 exactly as listed in Tables 2-2 and 2-3. Table 2-3 lists for SPD code “JFV” the narrative reason as “Condition, Not a Disability,” by regulatory authority AR 635-200, para 5-17. 5. 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. 6. Army Regulation 635-40 (Disability 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. 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. 7. 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) 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. 8. 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. 9. 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. 10. 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. 11. Section 1556 of Title 10, United States 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003467 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1