IN THE CASE OF: BOARD DATE: 22 November 2023 DOCKET NUMBER: AR20230002950 APPLICANT REQUESTS: * processing through the Disability Evaluation System (DES) for duty-related physical disability retirement in lieu of honorable transfer to the Retired Reserve due to medical disqualification for retention * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * documents in excess of 300 pages, included in applicant labeled exhibits A-H, Department of Veterans Affairs (VA) medical records, and military medical records FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He retired from the Georgia Army National Guard (GAARNG) with a status of retired due to medical reasons. He was not afforded the opportunity for review by the DES for consideration for a medical retirement. He feels he is eligible for the DES process and should be given the opportunity to change the status of his retirement to medical retirement. b. The medical conditions that were determined to disqualify him from continued military service were service-connected and sustained during deployments to Kosovo and Iraq. He has submitted supporting medical documentation, DD Forms 214 (Certificate of Release or Discharge from Active Duty), and a VA disability award letter showing how his conditions are service-connected. c. He is writing in hopes of correcting an extreme travesty. He was a Soldier who served his country from October 1999 to February 2016. During this time, he served in many capacities. He served as both an enlisted Soldier in aviation and an officer in aviation. He did three deployments, multiple schools, Active Duty for Operational Support (ADOS) tours and State active-duty stints during this time. He also served as a Federal technician from September 2001 to February 2016. He retired as a Chief Warrant Officer Two (CW2), promotable and in his technician position as a GS13, due to medical reasons, which is the reason he is writing today. He is asking the Board to consider correcting his status as a gray area retiree and make it a full medical retirement. He will lay out reasoning for his case below. d. In April 2015, he suffered a 2-week stint of not being able to breath very well. At the time, he wrote it off to a bad case of allergies since it was the time of year pollen coats everything with a bright yellow coating. On Monday, 13 April 2015, his lungs finally constricted to the point he could barely intake any oxygen at all. His boss, who was the Facility Commander of Army Aviation Support Facility #1, told him to leave work immediately and go to the emergency room. He did as instructed and drove to Northeast Medical Center, which was 12 miles away. Within minutes of his arrival, the hospital staff had him on supplemental oxygen and were administering steroids in order to force the airways back open. An x-ray and computerized tomography (CT) scan of his chest and lungs were also conducted during this hospital visit. (See Exhibit A) This was only the beginning of what would be a very long and up hill road. e. He left the hospital with a referral to see Dr., a few days later. He had his first consultation with Dr. and his initial assessment was severe asthma. He decided on a treatment plan of using a rescue inhaler and Advair, which should in turn reverse the asthmatic symptoms he was experiencing. Severe asthma is a career ender, especially in aviation, however Dr. felt as though the outlook of recovery looked promising due to his age and the fact that up until 2015, he could still run a 7-minute mile. A month later, he returned to conduct a PFT (Pulmonary Functions Test) and to see how well the treatment plan was working. His forced expiratory volume (FEV-1) number had actually gotten worse, somewhere around 48 percent and the medications offered little to no relief. The treatment regime was certainly not having the effect either of them wanted. Dr. put him on round of Prednisone and added Spiriva to his treatment plan. He scheduled an appointment for a 2 month follow up and also ordered an allergy test prior to his next appointment. The results of the allergy test concluded he was allergic to every type of grass, dust, and dust mites. The allergist said he could control these with a simple dose of any over the counter allergy medication. He proceeded to his appointment with Dr., where another PFT was conducted. Even with the additional medication and a cycle of Prednisone, his FEV-1 number had only increased to 52 percent. It was apparent he did not have a simple case of asthma. (See Exhibit B) Dr. suggested, due to his limited response to the medication, his profession and deployment history, constrictive bronchiolitis was a high probability. Dr. added Zithromax, three times a week to his treatment plan. Dr. decided they would continue to monitor his progress in the hopes something would change. He soon started to get sick for days at a time. Almost anything could trigger days of him being bedridden and gasping to take a good breath, sometimes having to crawl to the restroom only to bronchospasm and cough sputum, phlegm and sometimes even blood because his body was starved for oxygen. f. During this time, the battalion flight doctor grounded him from all flight duties and put him on a P2 profile. (See Exhibit C) His last appointment with Dr. resulted in his FEV-1 being 42 percent and being told even without a biopsy, he was 98 percent sure he had constrictive bronchiolitis. Constrictive bronchiolitis is an extremely rare and often fatal lung disease of the small airways. It shares symptomology of both asthma and bronchitis, yet the medicines used to treat either of the aforementioned due little more than suppress effect temporarily. The result of this combination is continually feeling as though something is constantly squeezing your lungs, every second of every day, almost as though it is one continuous asthma attack. What people would consider normal daily activities can no longer be performed. The simple task of taking the trash bag from inside of the house out to garbage can outside, could result in wheezing and gasping for air. Most days are spent with constant wheeze and a persistent cough. Simply going up a flight of stairs can trigger bronchospasms or require you to use a rescue inhaler. Your immune system becomes nonexistent due to the fact that the same medicines which are extending the life span of ultimately failing lungs reduces it to nothing; thus, making you susceptible to everything. Even on days when you are not bed ridden and gasping for air, it is hard to find the energy to do much of anything due to the reduce oxygen intake. Currently, the only true "cure" for constrictive bronchiolitis is lung transplants. Dr. wanted a second opinion and also knew further testing and treatment options would require him being transferred to the Emory Medical System, so Dr. referred him to Dr., at Emory Pulmonary. g. At this point, he updated the battalion flight surgeon and based on all the medical evidence, medical opinions and treatment therapies, he would be medically unfit to continue military service. Shortly after, aviation started the process of medically retiring him. The battalion flight surgeon gave him a P3 profile and the aviation medical team started to build a discharge packet. He received a packet of paperwork which contained a memorandum covering his notification of medical disqualification per Army Regulation (AR) 40-501 (Standards of Medical Fitness), paragraph 3-27(c)Chronic Asthma, medical paperwork, and was told someone would get in touch with him moving forward. The aviation medical staff said not to worry and they had everything under control. He asked if he could utilize the Medical Evaluation Board (MEB) process, to which they responded with it not being an option due the fact he did not have a line of duty (LOD) determination from active duty. This is important because the lung condition he has been diagnosed with is directly related to the burn pits utilized during his deployments. A burn pit registry was established in 2015 and has been used to monitor and track the now 3 million Soldiers who were exposed during the war in both Iraq and Afghanistan. The VA has even changed the existing law to give Soldiers who deployed to Southeast Asia Theater 10 years after service to file a claim. He entered all his info into the registry in 2015. (See Exhibit D). This process started in July 2015, which was 4 years after his last deployment to Iraq. h. The next few months passed with his health getting progressively worse. He would have to take sick leave from his full-time technician job because he would be bed ridden for days at a time. He split out drill days because he was too sick to attend at times as well. It was not until October 2015 that the provider over aviation medicine made his final decision, giving him a P3 profile which he has included in his paperwork. He never spoke with any military medical staff outside aviation at any point outside of this process. The aviation medial team also told him that everything would catch up once he was retired using the chapter 3 process. Once the process was completed, he would be entitled to his technician retirement, Social Security disability benefits, VA compensation and after the VA rated him, he would be entitled to his Army retirement. Sounded legit to him because after all, they were the professionals who handle this sort of thing, right? In November, he was contacted by someone from the G1 (personnel) office and a meeting was set to move forward with the retirement process. During this meeting, he was given a developmental counseling and was asked to make a selection for his Intent of Medical Retention Determination Point. During the counseling session, very little was actually discussed about his options going forward. What was discussed however was the fact that he had to make a decision before he left that day. He again asked the individual conducting the counseling if he was eligible to pursue the MEB process. The answer he received was no and that he really only had one option to him, which was to accept the medical disqualification and be medically retired because he was over the 15-year mark. The option of pursuing the Physical Evaluation Board (PEB) process was only available to individuals who could be found fit to pursue military service and was not available to him due to his medical findings and continued deteriorating medical condition. So, he chose a date for ending his military career, on 20 February 2016. Once this date was selected, the technician program started the retirement process as well now that they had a date of a projected lose. He continued to go to work and drill as much as a he could but both were still limited due to his continued decline in health. (See Exhibit E). i. The week after his military retirement, he had his first appoint with Dr. at Emory Pulmonary. After explaining everything which had transpired up to his consultation with Dr. , he said we would have to do a biopsy but he also was 98 percent sure he had constrictive bronchiolitis. Two weeks later, a biopsy was performed at Emory and the results confirmed everyone's suspicions of constrictive bronchiolitis. Two days after the biopsy, Dr. called to give him the results and after the initial shock, he asked what his timeline was? The doctor informed him that in most cases a transplant is required within 5 years. However, after the transplant is performed, the success rate of making it post 5 years is 50 percent. This effectively gives him a life span of 10 years or less. Dr. felt they should continuously use Prednisone and add nebulizer treatments every 6 hours to his treatment plan. This treatment plan seemed to at least stabilize his lung function. He started to have less extended periods of flair ups. So, even though it was not the cure, it at least plateaued the loss of his lung function. It also helped to reduce the days he would be bedridden. (See Exhibit F). About a month and a half later, he was discharged from the technician program as well. He then started the process of pursuing Social Security disability and VA disability compensation. He will not go into great detail, but he will say he was denied both and had to hire a lawyer to deal with Social Security. Since he did not receive any rating through the process of his military "medical retirement," the VA denied his claims and it finally took a phone call to the Veterans Help line established in 2017 to get the assistance he rightly deserved. Due to fact that constrictive bronchiolitis is ultimately terminal, a case worker was assigned to reassess his case. The result of the reassessment was his constrictive bronchiolitis alone, found him to be 100 percent permanently and totally disabled. Coupled with other findings, he falls into the homebound category. So today, he is riding out his terminal illness in service to his country and trying to do the most with the time he has left in this world. j. The whole process of his discharge was handled outside of the scope and purview of the GAARNG G-1 medical team who handles these cases. Even though aviation has their own medical staff, they focus on the readiness of Army aviators. They are not school trained, nor are they authorized to handle these types of situations, which obviously has resulted in extremely negative impacts. The medical staff specific to aviation also did not follow the GAARNG Medical Actions Standard Operating Procedures (SOP) for handling such cases. The GAARNG G-1 Medical Actions SOP has guidance for both the Medical Retention Determination Point (MRDP) and Disability Evaluation System (DES). (See Exhibit G) Chapter 1 paragraph 3, which states that during the chapter 3 Retention Evaluation process, Soldiers who do not meet medical retention standards by reason of a non-duty related injury, illness, or disease will be referred by the Clinical Deputy State Surgeon (DSSC) to the medical Program Manager (MPM) for counseling. The MPM will coordinate with Major Subordinate Command Medical Readiness Non-Commissioned Officer (MSC MRNCO), case manager (CM) and Soldier to schedule an appointment. To his knowledge, none of this happened. No case manager was ever assigned and Aviation Medicine handled almost everything internally. Chapter 2 paragraph 4 (c) states all soldiers will have a 60- day suspense from the date of the MRDP counseling to make an election on the notification of intent memorandum, if needed. Soldiers are to receive a counseling pertaining to their status and retirement or discharge. Upon receiving said counseling the individual is given 60 days to make a decision about how they would like to proceed. At the 60-day mark, the make a selection to either leave with more than 15 years, less than 15 years or be considered in the Non-Duty Related PEB process. The PEB process can also result in a full MEB which was not explained at any time. At his counseling, he was told he had to make a decision that very day and there was not any time to think things over. He was also told he did not need any additional time due to the fact he really only had one option, which was to select the grey area retirement of over 15 years. This was due to the fact that he had a P3 profile, had been given a chapter 3 for severe persistent asthma (constrictive bronchiolitis), and would not be able to stay in due to these restrictions. Entering the PEB process was not even an option and was only for Soldiers who could be found fit, he was told. k. According to the GAARNG MRDP SOP Chapter 1 paragraph 3, during the Chapter 3 Retention Evaluation process, a DA Form 3349 (Physical Profile Record) with a 3 or 4 in PULHES, is issued by the Deputy State Surgeon -Clinical (DSS-C) for medical condition(s) or by a Behavioral Health Officer (BHO) for behavioral health condition(s). The profile will list all current medical conditions and outline all physical limitations. Soldiers will sign a DA Form 4856 (Developmental Counseling Form) acknowledging that all medical conditions have been disclosed and they are being referred to DES. This never took place. His PULHES 3 profile was written by the Aviation Flight Surgeon, not the DSS-C and this profile never received a second signature from the State Surgeon. (See Exhibit H). He also did not receive any counseling in reference to receiving his P3 profile. l. Throughout the entire process, he was never seen by any medical staff outside of aviation medicine. He never received a retirement physical. He never received a retirement briefing. He can only assume this was done out of ignorance due to the fact no one in aviation medicine is school trained or follows the GAARNG G-1 SOPs. He should have been transferred out of aviation while he was undergoing the DES process. The memorandum for the Medical Retention Determination Point is in itself deceptive due to the fact it states those individuals with more than 15 qualifying years of service will be medically retired. For anyone who is undergoing a significant amount of stress (i.e., told you have a terminal illness), they trust people who are supposed to have their best interests at heart. They would believe the professional sitting across the table looking them in the eye are telling them the truth and are giving them all the information available so they can make decision which will affect the rest of their lives. He can only speak for himself, but this was most definitely not how his particular case was handled. So, he asks the Board today for your gracious consideration to correct his status as a grey area retiree, to a full medical retirement. 3. The applicant enlisted in the ARNG on 28 October 1999. An initial DD Form 214 shows the applicant entered active duty on 24 January 2000 and completed initial active-duty training (IADT), which culminated in his completion of the Aircraft Powerplant Repairer Course and awarding of the Military Occupational Specialty (MOS) 68B (Aircraft Powerplant Repairer). He was honorably released from active duty on 23 August 2000, credited with 7 months of net active service, and transferred back to his ARNG unit. 4. A second DD Form 214 shows the applicant was ordered to active duty in support of Operation Enduring Freedom (OEF) on 21 January 2003, with stateside assignment. He was honorably released from active duty and transferred back to his ARNG unit on 19 March 2004, due to completion of required active service. He was credited with 1 year, 1 month, and 19 days of net active service this period. 5. A third DD Form 214 shows the applicant was ordered to active duty in support of OEF on 9 July 2006, with duty in Germany and Kosovo from 12 October 2006 through 1 November 2007. He was honorably released from active duty and transferred back to his ARNG unit on 28 December 2007, due to completion of required active service. He was credited with 1 year, 5 months, and 20 days of net active service this period. 6. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows on 6 May 2009, the applicant was seen as an outpatient for right shoulder joint pain he incurred while assisting in moving a helicopter into a hanger while on active duty for training (ADT). On 30 July 2009, the unit commander signed the form indicating a formal LOD investigation was not required and the injury was considered to have been incurred in the LOD. 7. A fourth DD Form 214 shows the applicant entered ADT on 15 July 2009 to attend Warrant Officer Candidate School and was honorably released from active duty after 1 month and 3 days of active service this period on 17 August 2009, to accept a warrant officer commission. 8. The applicant was appointed as a Reserve warrant officer of the Army on 18 August 2009. 9. A fifth DD Form 214 shows the applicant was ordered to ADT on 18 August 2009, where he completed the Initial entry Rotary Wing Aviator (UH-60) Course and was awarded the primary specialty 153D0 (UH-60 Pilot). He was honorably released from active duty and transferred back to his ARNG unit on 2 December 2010 due to completion of ADT. He was credited with 1 year, 3 months, and 15 days of net active service this period. 10. A sixth and final DD Form 214 shows the applicant was ordered to active duty in support of Operation New Dawn on 21 December 2010, with duty in Kuwait/Iraq form 1 February 2011 through 13 November 2011. He was honorably released from active duty and transferred back to his ARNG unit on 5 February 2012, due to completion of required active service. He was credited with 1 year, 1 month, and 15 days of net active service this period. 11. The applicant provided numerous civilian and service medical records, dated all of which have been provided in full to the Board. Of pertinent note, are the following: a. A Northeast Georgia Medical Center Radiology Detail shows the applicant underwent CT Pulmonary Angiogram on 13 April 2015, due to difficulty breathing. The impression shows no convincing acute process; specifically, no pulmonary embolus or thoracic aortic aneurysm or dissection was seen. Evidence of prior granulomatous disease. b. Medical documents show on 8 May 2015, the applicant was again seen at Northeast Georgia Diagnostic Clinic for dyspnea (shortness of breath) with tightness in the chest for several weeks. He provided a history of childhood asthma which he outgrew and significant smoke exposures from burning oil fields while in Iraq. He was assessed with an abnormal chest CT, asthma, and gastroesophageal reflux disease (GERD). His symptoms were deemed compatible with asthma. 12. A physical profile is used to classify a Soldier’s physical disabilities in terms of six factors or body systems, as follows: “P” (Physical capacity or stamina), “U” (Upper extremities), “L” (Lower extremities), “H” (Hearing), “E” (Eyes), and “S” (Psychiatric) and is abbreviated as PULHES. Each factor has a numerical designation: 1 indicates 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. 13. The applicant provided multiple DA Forms 3349 (Physical Profile) which show the following: a. On 10 June 2015, the applicant was given a temporary physical profile PULHES rating of 222111, due to shortness of breath. The applicant presented with proper documentation from his primary pulmonologist that he was undergoing full work up for pulmonary disease. He had a working diagnosis of asthma and had multiple functional activity and Amy Physical Fitness Test (APFT) limitations. He may perform MOS specific administrative tasks only. His temporary physical profile was due to expire on 25 July 2015. He will likely need an IDES process to determine if he meets retention standards. b. On 12 June 2015, the applicant was given a second temporary physical profile PULHES rating of 222111, due to shortness of breath, that mirrors the 10 June 2015 physical profile, with the inclusion of additional functional activity limitations. 14. A Standard Form 600 (Chronological Record of Medical Care) shows the applicant presented to Ms. , unit administrative personnel, on 16 July 2015, with documentation from his primary pulmonologist reflecting he was undergoing a full work-up for pulmonary disease with a working diagnosis of asthma, controlled with corticosteroids, and requiring multiple duty limitations. Once all follow-up medical documentation is reviewed, he will likely need an IDES process to determine if he meets retention standards. The form contains numerous administrative updates subsequent to the initial entry. 15. Medical documentation shows on 20 July 2015, the applicant was seen for a follow up at Northeast Georgia Diagnostic Clinic with a diagnosis of chronic obstructive asthma. He stated he was still extremely dyspneic with activity, despite medication changes and felt tightness in his chest on most days. He was assessed with chronic obliterative bronchiolitis from chemical fume and vapor inhale. The applicant’s spirometry was reviewed, which showed ongoing decline in lung function. The doctor did not think he had asthma and suspected he has constrictive bronchiolitis from exposures while serving in the Middle East and discussed the possibility of lung biopsy to confirm this pathologically, as his CT scan did not show any signs of mosaic pattern to suggest air trapping. The pulmonologist would discuss this with the applicant’s supervisors to see if this is necessary and he would make appropriate referral at that time. 16. On 20 July 2015, the applicant’s immediate commander requested a fit for duty evaluation – in the LOD, for possible board action and possible retention of the applicant. An interview with the applicant revealed the applicant’s unspecified asthma/dyspnea required evaluation as it was aggravated while in Iraq and there was no approved LOD. The applicant did have a physical profile for the condition, with multiple duty limitations arising from shortness of breath, possible pulmonary disease. 17. Additional DA Forms 3349 show the following: a. On 24 September 2015, the applicant was given another temporary physical profile PULHES rating of 222111, due to shortness of breath. The applicant was currently undergoing fitness for duty for ongoing pulmonary disease thought to be related to exposure in Iraq. He has multiple functional activity and APFT limitations and may perform MOS administrative tasks only as his symptoms prevent him from performing aviation duties. His temporary physical profile was due to expire on 23 December 2015. b. On 22 October 2015, the applicant was given a permanent physical profile PULHES rating of 312111 due to chronic asthma, which limited him in some functional activities and APFT events. The applicant was diagnosed with asthma that has met maximal treatment and was not likely to improve, was exacerbated by aerobic events and environmental allergens. He does not meet medical retention standards of Army Regulation 40-501, chapter 3 and is recommended for medical discharge per chapters 9 and 10. 18. A GAARNG memorandum dated 9 November 2015 shows the following: a. The applicant was notified on the date of the memorandum, that his medical condition of chronic asthma has been determined to disqualify him from further military service under the provisions of Army Regulation 40-501, chapter 3. b. He was advised he must choose one of the following options: (1) Accept the medical disqualification and be medically discharged if he had less than 15 years of creditable service for retirement. (2) Accept the medical disqualification and be medically retired and transferred to the Retired Reserve if he had 15 years or more of creditable service for retirement. (3) Request a non-duty related PEB, which would determine his fitness for continued military service. The non-duty related PEB would be a non-appearance board held at Fort Sam Houston, TX. This board would review all pertinent medical information pertaining to his disqualifying conditions, both from his military records and documents provided by his personal physician. c. If he chose the option for a non-duty related PEB, he must submit a completed packet prior to his suspense date of 5 December 2015. Failure to comply would result in his discharge or retirement (if applicable) from the GAARNG. d. If he believed his medical condition was incurred or aggravated while performing active or inactive duty for training while a member of the GAARNG, he must provide an approval memorandum for an approved DD Form 261 (Report of Investigation LOD and Misconduct Status) along with an approved DA From 2173 (Statement of Medical Examination and Duty Status) prior to the suspense date. e. This memorandum constitutes his notification of separation. Failure to respond by the suspense date would result in transfer to the Retired Reserve or discharge, whichever applies. 19. A GAARNG memorandum, dated 9 November 2015, provided notification of intent for medical retention determination point, wherein the applicant acknowledged the following: a. He acknowledged he has chronic asthma which medically disqualifies him for further military service in accordance with Army Regulation 40-501, chapter 3. b. He has been counseled regarding his rights and responsibilities and understands them. c. He understands the elections made herein are irrevocable and not subject to appeal. He acknowledged this election is made personally by him, without influence or coercion from any third party. d. His election was to accept the medical disqualification and be medically retired and transferred to the Retired Reserve if he had 15 years or mor of creditable service for retirement. His requested date of retirement was 20 February 2016. 20. A DA Form 4856 shows the following: a. The applicant was counseled on 9 November 2015, regarding having a medical condition disqualifying him from further military service in accordance with Army Regulation 40-501, chapter 3. He has been given a Notification of Intent (NOI), which details the possible elections he may choose regarding which separation process he prefers. He was advised he may elect one of the following: (1) Accept the medical disqualification and be medically retired and transferred to the Retired Reserve, if he had 15 years or mor of creditable service for retirement (2) Accept the medical disqualification and be medically discharged if he had less than 15 years of creditable service for retirement. (3) Non-duty related PEB (This option is for Soldiers whose injury/illness is not connected to an approved LOD claim). b. By initialing the following, he acknowledged he read and understood his rights and responsibilities pertaining to his election, including making an election regarding his separation from the GAARNG and if he elected to go before the non-duty related PEB, he must submit a complete packet prior to the suspense date. The applicant signed the form on 9 November 2015. 21. State of Georgia Orders 021-815, dated 21 January 2016, honorably separated the applicant from the ARNG and transferred him to the Retired Reserve effective 20 February 2016, due to medical, physical or mental condition, not meeting retention standards. 22. Additional medical documentation shows the applicant was again seen for follow-up at Northeast Georgia Diagnostic Clinic on 22 January 2016, for his constrictive bronchiolitis from toxic exposures in the Middle East. The doctor discussed the potential for lung transplantation in the future; however, the applicant’s lung function was not severe enough to wart that at this time. 23. The applicant’s National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service) shows he was honorably discharged from the ARNG and transferred to the Retired Reserve effective 20 February 2016, due to medical disqualification for retention. He was credited with 16 years, 3 months, and 23 days of total service for retired pay. 24. The applicant provided a VA letter, dated 22 December 2017, reflecting his participation in the Airborne Hazards and Open Burn Pit Registry, submitted on 22 December 2017, wherein provided information regarding his specific deployment exposures to soot, ash, smoke or fumes from the Gulf War oil fires and sewage ponds while deployed to Kuwait and Iraq. 25. A VA Rating Decision, dated 4 April 2018, shows an earlier effective date has been granted for the applicant’s service-connected evaluation assigned to constrictive bronchiolitis. A 30 percent evaluation has been assigned from 13 May 2016 and an evaluation of 100 percent is assigned form 15 June 2017. The applicant’s entitlement to special monthly compensation based on housebound criteria being met is granted from 15 June 2017. 26. A VA letter, dated 16 April 2018, provided the applicant his benefit information, detailing the changes outlined in the above 4 April 2018 Rating Decision and reflecting his combined rating evaluation was as follows: * 60 percent, effective 13 May 2016 * 80 percent, effective 10 May 2017 * 100 percent, effective 15 June 2017 * 100 percent effective 4 August 2017 27. The applicant provided numerous additional medical documents postdating his military service as well as informational papers and memoranda pertaining to burn pit health hazards, all of which have been provided in full to the Board for review. 28. 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. 29. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 30. 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. 31. 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, the Army Aeromedical Resource Office (AERO), 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 a referral to the Disability Evaluation System (DES) and a medical retirement. He states: “I was retired from military service from the Georgia Anny National Guard with a status of retired due to medical reasons. I was not afforded the opportunity for review by the Disability Evaluation System (DES) for consideration for a medical retirement. I feel that I am eligible for the DES process and therefore should be given the opportunity for review to change the status of my retirement to a Medical Retirement. I should be offered an opportunity for review by the Disability Evaluation System (DES) for a medical retirement as my medical conditions that were determined to be disqualifying me from continued military service were service connected and sustained during deployment to Kosovo and Iraq. I have submitted supporting medical documentation, DD Fom1 214's, and VA disability award letter to the ABCMR showing how my conditions arc service connected.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s Report of Separation and Record of Service (NGB Form 22) for the period of Service under consideration shows the former Guardsman entered the Army National Guard on 18 August 2009 and was discharged from the Georgia Army National Guard (GAARNG) on 20 February 2016 under the provisions of paragraph “NGR 600-101; NGR 635-100; NGR 635-101.” It shows the applicant had 16 years, 3 months, and 23 days of total service for retired pay. d. A DD 214 shows he was ordered to active duty in support of Operation New Dawn from 21 December 2010 thru 5 February 2012 with service in Kuwait/Iraq from 1 February 2011 thru 13 November 2011. This was the only Southwest Asia deployment identified e. Discharge orders published by The Georgia National Guard show a “Loss Code” of “Medical, Physical, or mental Condition Retention” and that he was transferred to the Retired Reserve effective 20 February 2016. His Army National Guard Retirement Points History Statement prepared 17 May 2016 shows the same 16 years, 3 months, and 23 days of total service for retired pay and that he had been strictly a drilling member from 6 February 2012 through date of separation, 20 February 2016. f. JLV shows the applicant was diagnosed with constrictive bronchiolitis in 2015 and with asthma on a date unknown. From his 2016 Respiratory Conditions (Other Than Tuberculosis and Sleep Apnea) Disability Benefits Questionnaire (aka “VA C&P”): “Veteran reports that this problem started last year. Reports that he has had work-up. Reports that he was told this was from his deployment. Reports that he follows up with Pulmonary at North-GA. Reports that he has followed up with Emory Pulmonary and lung biopsy was done this April 2016. Reports that they are reporting he needs a lung transplant. Reports that he got short of breath a lot. Has an ER visit 4/13/2015 at North-East GA Medical center. Had childhood asthma and reports that he outgrew it by age 8. Has chronic wheezing. Gets frequent colds. Reports that he occasionally gets shortness of breath at rest and with activities.” g. From the National Library of Medicine’s website: “Constrictive bronchiolitis is a bronchiolar airway disease that surrounds the lumen with fibrotic concentric narrowing and obliteration ... This fibrotic constrictive lesion develops externally to the airway lumen, constricting the airway in a concentric manner with eventual obliteration of the lumen. This is distinct from the inflammatory proliferative lesion that develops internally from the airway wall, filling the lumen with an inflammatory polypoid lesion or buds of granulation tissue, and referred to as proliferative bronchiolitis ... (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2948389/) h. The applicant was placed on a duty-limiting permanent physical profile for “chronic asthma” on 23 October 2015. The provider noted the condition was not duty related and that he should be administratively separated under processes outlined in chapter 10 of AR 40-501, Standards of Medical Fitness. i. On 9 November 2015, the GAARNG notified the applicant his condition disqualified him for further military service and presented him with a series of elections. 1) Request an honorable discharge if he have less than 15 years of qualifying service. 2) Transfer to the Retired Reserve if he have 15 qualifying years of service. 3) Request a non-duty related physical evaluation board (NDR PEB) for a determination of fitness for continued military service. j. On 9 November 2011, the applicant was counseled on options by CW2 M.L., the Health Services Program Manager for the GARNG. He agreed with the counseling and then elected to be transferred to the retired reserve effective 20 February 2016. From his elections memorandum: “1. I acknowledge that I have chronic asthma which medically disqualifies me for further military service IAW AR 40-501, Ch. 3. 2. I have been counseled regarding my rights and responsibilities, and received a copy of DODI 1332.38, para. I., para. E3.P1 .3. I understand those rights and responsibilities 3. I understand that the elections made herein are irrevocable and not subject to appeal. I acknowledge that this election is made personally by me, without influence or coercion from any third party. 4. My Election is: a. Accept the medical disqualification(s) and be medically retired, and transferred into the Retired Reserve, if you have 15 years or more of creditable service for retirement. Requested date of Retirement 20 FEB 16 .” k. Because the applicant had 16 years, 3 months, and 23 days of total service for retired pay, he is eligible to retire under 10 U.S. Code § 12731b, Special rule for members with physical disabilities not incurred in line of duty (15-year notice of eligibility). Passed in 1999, this statute authorizes the Secretary concerned to treat a member of the Selected Reserve who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit due to physical disability not incurred in the line of duty as having met the service requirements for years of service computed under 10 U.S. Code § 12732. The Secretary can then provide the member with a notification that the member has completed at least 15, and less than 20 of service. This “15-year Notice of Eligibility” authorizes a non-regular retirement. l. Review of his AHLTA records in JLV found no pulmonary condition related encounters. m. There is no probative evidence directly connecting the applicant’s disqualifying medical condition diagnosed in 2015 with his service in Southwest Asia in 2011. Thus, the applicant was and remains ineligible for the duty-related DES processing. n. Multiple studies suggesting a link between service exposures in Southwest Asia to the development of chronic respiratory diseases has led the Veterans Benefits Administration (VBA) to presumptively service connect a number or respiratory diseases, to include constrictive bronchiolitis, to service in Southwest Asia. o. However, the requirements for an affirmative Army line of duty determination with its potential for compensation and other benefits from DES processing versus a Veterans Benefits Administration (VBA) service connection, though similar, are different in several respects, this being one of those. p. The VBA presumptively service connects conditions related to a period of Service in a given geographic region which has been linked to environmental contaminants / factors associated the with the potential to develop one or more associated conditions. Vietnam with possible exposure to agent orange is the best-known example of this policy. While there is typically no direct cause and effect for a given individuals development of a covered presumptive medical condition as required for an affirmative line of duty determination, giving this benefit to the Veteran with a period of service in one of these regions provides health care and other benefits to Veterans with diseases which may be due to such service incurred exposures. q. Review of his records in JLV shows he has been awarded multiple VA service- connected disabilities, including 100% for bronchial asthma and 70% for PTSD. 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. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. r. It is the opinion of the Agency Medical Advisor A referral of his case to the DES for a duty related medical condition is not warranted. s. While the applicant’s discharge orders show he was transferred to the Retired Reserve, a Notification of Eligibility for Retired Pay at Age 60 (15-Year Notice of Eligibility) was neither in the application nor iPERMS. Without this document, the applicant is almost certain to have substantial difficulty applying for his retirement at age 60 (20 February 2040). It is recommended the applicant be informed of this potential deficiency in the ABCMR memorandum documenting his board results. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. One possible outcome was to deny relief based on the medical opine showing the applicant was ineligible for DES referral. However, upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding referral of the applicant’s case to the DES for a duty related medical condition is not warranted. The Board noted the medical opine that found no probative evidence directly connecting the applicant’s disqualifying medical condition diagnosed in 2015 with his service in Southwest Asia in 2011. Thus, the applicant was and remains ineligible for the duty-related DES processing. However, during deliberation, the Board determined the applicant had not been issued his 15- Year Notice of Eligibility (NOE), which is essential for his retired pay at the age of 60. Based on this, the Board granted relief. 2. 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 :X : :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : 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 records of the individual concerned be corrected by showing issuance of a Notification of Eligibility for Retired Pay at Age 60 (15-Year Notice of Eligibility). 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 processing the applicant through the Disability Evaluation System (DES) for duty-related physical disability retirement in lieu of honorable transfer to the Retired Reserve due to medical disqualification for retention. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (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. 3. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 4. 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. 5. 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. 6. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 8. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 9. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002950 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1