IN THE CASE OF: BOARD DATE: 9 November 2023 DOCKET NUMBER: AR20230002471 APPLICANT REQUESTS: a physical disability retirement in lieu of discharge for being medically unfit due to a non-line of duty (LOD) issue with less than 15 years. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * ARBA online application in lieu of DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) summary of benefits letter * Notification of Medical Disqualification for Retention in the Hawaii Army National Guard * DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 23 October 2011 * NGB Form 22 (National Guard Bureau Report of Separation and Record of Service), effective 29 January 2016 * medical record (2 pages) 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 he was discharged with a reason of medically unfit due to a non-LOD issue, however with the supporting documentation he feels it is necessary to change it to a medically retired [separation]. He was originally separated from the Army National Guard with a NGB Form 22 stating in Block 23 that he was found medically unfit due to a non-LOD issue. With the supporting documentation and his current service connected disabilities that are directly related to his military discharge, he should be able to be considered medically retired. During his separation, he was unaware of the procedure, requirements, and his ability to challenge his discharge authority or reason. Therefore, he did not bother to change or challenge the reasoning. He understands he has a discharge [characterization] of honorable; however, he feels being medically retired would be fair given the circumstances and he would have better benefits as his service related medical issues seem to be worsening. 3. The applicant enlisted in the Hawaii Army National Guard (HIARNG) on 24 June 2009 for a period of 8 years. 4. The applicant entered active service on 6 July 2009 for initial active duty for training (IADT). He completed his required training and was awarded military occupational specialty (MOS) 15U (helicopter repair). He was honorably released from active duty on 11 February 2010 and transferred to his HIARNG unit at Schofield Barracks, HI. 5. The applicant was mobilized in support of Operation Enduring Freedom effective 13 August 2010. He served in Afghanistan from 27 October 2010 to 6 August 2011. He was honorably released from active duty on 23 October 2011 and transferred to his HIARNG unit at Schofield Barracks, HI. 6. The applicant provided a Notification of Medical Disqualification for Retention in the Hawaii Army National Guard, dated 1 December 2015 stating that based on a review of his medical records and/or documents from his civilian provider, a permanent profile was issued on 18 November 2015 for low back pain and it was determined he does not meet medical retention standards. He was provided three options for disposition of his case: consideration of his case by a Non-Duty Related Physical Evaluation Board (NDR-PEB) for a fitness determination only; an honorable discharge from the Hawaii Army National Guard; and transfer to the Retired Reserve if he was otherwise qualified for retirement based on total qualifying years of service. 7. The applicant’s available record does not contain documentation of an election pertaining to the Notification of Medical Disqualification for Retention in the HIARNG and the applicant did not provide one for review. 8. The applicant was honorably discharged from the HIARNG and the Army Reserve on 29 January 2016. He was credited with 6 years, 7 months, and 6 days of total service for retired pay. His NGB Form 22 shows the following: * Item 23 (Authority and Reason): paragraph 6-35l(12), National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) Soldier found medically unfit due to non-LOD issue with less than 15 years * Item 26 (Reenlistment Eligibility): 3 9. On 6 June 2023, the ARBA Case Management Division requested an advisory opinion from the Army National Guard Readiness Center for review and administrative action, if appropriate. The following response was received on 21 August 2023: a. The applicant's records show that he was on active duty from 13 August 2010 to 23 October 2011 with assignment to Schofield Barracks, HI and was deployed to Afghanistan from 27 October 2010 to 6 August 2011. According to medical records, the applicant suffered a back injury on or about 28 May 2011. This incident was determined to be a non-LOD injury. However, the applicant suffered from further back pain, and according to his chronological record of medical care, he was recommended for referral to medical disqualification process in accordance with (IAW) Army Regulation (AR) 40-501 on 6 June 2015. He was eventually given a P3 profile on 18 November 2015. The applicant received a notification of medical disqualification for retention in the HIARNG on 1 December 2015 and was discharged from the ARNG on 29 January 2016. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. b. Per AR 40-501 Chapter 10, published in 2017, "Not in the Line of Duty (NILOD). Department of Defense Instruction (DODI) 1332.38 states that members with non-duty related impairments are eligible to be referred to the Physical Evaluation Board (PEB) solely for a fitness determination, but not a determination of eligibility for disability benefits." c. Based on the applicant's claims and the available documents, the applicant does not have a line-of-duty injury. However, since the injury occurred while the applicant was deployed on active-duty orders, it should have been considered in line-of-duty. Because his injury was determined to be not in line-of-duty, he did not get referred to Disability Evaluation System (DES) and was only referred to the medical disqualification process. d. For these reasons, it is the recommendation of this office that the applicant's request be partially approved. It is the opinion of this office that the applicant should have had a line-of-duty determination for his injury while deployed on active-duty orders. Additionally, the applicant claims that he did not have knowledge about the medical evaluation process, so he did not challenge his medical disqualification process. Since servicemembers cannot self-refer to the DES process, he would have needed a medical provider's referral from his medical history, but the applicant did not get referred to an evaluation board even with a P3 profile because his injury was determined to not be in line-of-duty. While the applicant cannot receive a medical retirement, the applicant should be referred to a medical evaluation board. e. The Army National Guard Medical Administrative Actions Branch concurs with this recommendation. f. The HIARNG concurs with this recommendation. 10. The applicant provided: a. A VA summary of benefits letter showing he has a combined service-connected evaluation of 90 percent. He did not provide a list of his service connected conditions with corresponding ratings. b. Two pages of medical records: (1) A Chronological Record of Medical Care, entry date 6 June 2015 showing the following clinical review: servicemember (SM) with degenerative disc disease of the lumbar spine. Currently undergoing physical therapy and regular follow-ups with primary care physician. Medically cleared to attend monthly drill with parameters of physical profile pending determination of medical board. Recommend referral to medical Disqualification Process. (2) An entry dated 28 May 2011 showing the applicant attended an appointment for backache. 11. 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. 12. 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. 13. 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. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found partial relief is warranted. 2. The Board concurred with the conclusion of the advisory official that the applicant’s back injury that occurred on or about 28 May 2011 while he was on active duty was incurred in the line of duty, and eventually should have been a basis for his referral to the Disability Evaluation System once the condition resulted in a P3 profile. Based on a preponderance of the evidence, the Board determined the applicant’s records should now be referred to the Disability Evaluation System to determine if his record should be corrected to show he was discharged for disability with severance pay or retired for disability. 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 the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army and Army National Guard records of the individual concerned be corrected by: * showing the back injury he incurred on or about 28 May 2011 was found to be in the line of duty – not due to own misconduct * referring his records to the Disability Evaluation System a. The individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to his discharge. b. In the event a formal Physical Evaluation Board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made after completion of the formal PEB. c. Should a determination be made that the applicant should be retired for disability or discharged for disability with severance pay, these proceedings serve as the authority 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 any relief without benefit of the review described above. 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. Army Regulation (AR) 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations) establishes policies, standards, and procedures governing the administrative separation of certain enlisted soldiers of the Army National Guard of the United States and the United States Army Reserve as directed by Department of Defense Directive 1332.14, December 1993 Subject: Enlisted Administrative Separations. 3. Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 4. Title 38 USC, section 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. Title 38 USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. 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: (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. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 8. Section 1556 of Title 10, USC, 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) AR20230002471 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1