IN THE CASE OF: BOARD DATE: 17 January 2024 DOCKET NUMBER: AR20230006254 APPLICANT REQUESTS: in effect, correction of her record to show she was medically retired for permanent disability instead of discharged from the Army National Guard for being medically unfit for retention. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * definition of Permanent Disability Retirement * Initial Medical Review - Annual Medical Certificate, undated * Department of Veterans Affairs (VA) Hospital letter, 9 September 1996 * Medical Record Progress Notes, 9 September 1996 * memorandum, subjected: Request for Medical Duty Review Board (MDRB), 11 September 1996 * South Carolina Army National Guard (SCARNG) Application for Discharge of Enlisted Person, 12 September 1996 * memorandum, subjected: Completed Line of Duty (LOD) Action, 15 September 1996 * MDRB Transmittal, 18 September 1996 * MDRB Transmittal, 20 September 1996 * memorandum, subjected: Notice to Initiate Separation Action, 30 September 1996 * NGB Form 22 (National Guard Bureau Report of Separation and Record of Service), 15 October 1996 * VA Board of Veterans' Appeals decision letter, 27 April 1998 * VA rating decision, 16 July 1998 (page 1 only) * VA decision letter, 23 July 1998 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 she was medically discharged before her expiration of service. She contends her condition was deemed to be in the line of duty and states she is entitled to lifelong benefits that were never processed. 3. The applicant served in the Regular Army from 18 March 1996 to 2 May 1994. She immediately enlisted in the South Carolina Army National Guard (SCARNG) effective 3 May 1994. 4. A DD Form 261 (Report of Investigation Line of Duty and Misconduct Status) shows the applicant was injured as the result of an automobile accident on 21 May 1995 while in rout to Inactive Duty Training with the 3649th Maintenance Company. She was diagnosed with muscular skeletal strain of the cervical spine. She was present for duty and mentally sound. She was not the proximate cause. The injury was found in the line of duty. 5. A medical consultation sheet, dated 13 December 1995, indicates the applicant was being evaluated for falling asleep unexpectedly. A medical progress note entry on 23 January 1996 shows the applicant was scheduled for a sleep study. An entry on 28 August 1996 shows she completed the sleep study. 6. A VA Hospital letter, dated 9 September 1996, states the applicant’s sleep study resulted in a diagnosis of narcolepsy and provides instruction for her treatment and safety precautions. 7. The applicant provided a memorandum, subjected: Request for Medical Duty Review Board (MDRB), dated 11 September 1996, for the Office of the Adjutant General, showing her referral to the MDRB. 8. An Application for Discharge of Enlisted Personnel, dated 12 September 1996, shows recommendation for the applicant’s discharge for being medically unfit for retention standards under the provisions of Army Regulation (AR) 40-501 (Standards of Medical Fitness). 9. The Medical Duty Review Board (MDRB) recommended the applicant be separated and notified the South Carolina Adjutant General (TAG) on 18 September 1996. TAG concurred with the recommendation for separation for disqualification under AR 40-501. 10. On 30 September 1996, a memorandum for commander, subjected: Notice to Initiate Separation Action, directs action be initiated to separate the applicant based on the recommendation by the State Medical Duty Review Board. 11. The applicant was honorably discharge from the SCARNG and as a Reserve of the Army on 15 October 1996 for being medically unfit for retention. 12. The applicant provided documentation from the VA showing she is service connected for her condition of narcolepsy with a disability rating of 100 percent effective 8 February 1996. 13. The applicant also provided an Initial Medical Review - Annual Medical Certificate, which does not show her name or a complete, legible date. This document shows a physical profile of 411111 and a diagnosis of sleep apnea disorder. A physical profile 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. 13. 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. 14. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting, in essence, a referral to the Disability Evaluation System. She states: “I was medically discharge before my ETS [End Term of Serviced]. It was deemed [in] LOD [Line of Duty]. Benefits that are lifelong were never processed ... I was only sent [an] NGB Form 22 [Report of Separation and Record of Service] and a discharge certificate in 1996.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Her Report of Separation and Record of Service (NGB Form 22) for the period of Service under consideration shows the drilling Guard Soldier entered the Army National Guard on 22 April 1994 and received an honorable discharge from the South Carolina Army National Guard (SCARNG) effective 15 October 1996 under authority provided in paragraph 8-26y of NGR 600-200, Enlisted Personnel Management: Medically unfit for retention standards of chapter 3, AR 40-501 [Standards of Medical Fitness]. d. The applicant was referred to neurology on 13 December 1995 after she “unexpectedly” fell asleep and was the cause of a motor vehicle accident. Neurology opined on 28 August 1996 that her sleep study was “very suggestive of narcolepsy.” e. In a 9 September 1996 memorandum to the applicant from Chief of the Pulmonary Section and Director of the Polysomnography Lab at William Jennings Bryan Dorn Veterans’ Hospital, he informed the applicant she had narcolepsy: Dear Ms. [Applicant]: As we discussed on the telephone this morning, your polysomnogram (also known as a sleep study) did not show any evidence of obstructive sleep apnea. There were, however, other abnormalities which were consistent with a diagnosis of narcolepsy. I have relayed these findings to Dr. in Neurology and it is my understanding that he has begun treatment with Ritalin for this disorder. It would be my advice that you do not drive or operate any machinery on any kind until cleared by Dr. ” f. Paragraph 3-30h or AR 40-501, Standards of Medical Fitness (30 August 1995) states that narcolepsy fails medical retention standards. A State Medical Duty Review Board conducted on 18 September 1996 recommended she be separated for this condition. g. A motor vehicle accident involving the applicant was subjected to a formal line of duty investigation in 1995. The Report of Investigation (DD 261) finalized 7 August 1995 shows her “Muscle Skeletal strain of the cervical spine” caused by this motor vehicle accident on 21 May 1995 was determined to have occurred in the line of duty: “SGT [Applicant] stated she had been forced off the road by an unknown driver while in route to Inactive Duty Training with the 3649th Maint Co. The accident occurred at 0500, 21 May 1995 while enroute to drill assembly. After notifying the State Highway Patrol, SGT drove to the nearest emergency treatment facility (Baptist Medical Center) - upon being treated and given medication, she then called her unit for instruction.” h. As noted on the Mayo Clinic’s website, the cause of narcolepsy is unknown: “The exact cause of narcolepsy is unknown. People with type 1 narcolepsy have low levels of hypocretin (hi-poe-KREE-tin), also called orexin. Hypocretin is a chemical in the brain that helps control being awake and when you enter REM sleep. Hypocretin levels are low in people who experience cataplexy. Exactly what causes the loss of hypocretin-producing cells in the brain isn't known. But experts suspect it's due to an autoimmune reaction. An autoimmune reaction is when the body's immune system destroys its own cells. It's also likely that genetics plays a role in narcolepsy. But the risk of a parent passing this disorder to a child is very low — only about 1% to 2%. Research also indicates that in some cases narcolepsy may be linked to exposure to the swine flu (H1N1 flu) virus. It also may be linked to a certain form of the H1N1 vaccine. The vaccine was administered in Europe. (https://www.mayoclinic.org/diseases-conditions/narcolepsy/symptoms- causes/syc-20375497) i. The condition is not associated with trauma and there is no evidence this drill member’s condition was incurred during or permanently aggravated by her military service. A referral to the DES is therefore not indicated. j. A 16 July 1998 VA Rating Decision shows her narcolepsy was determined to be 100% disabling effective 8 February 1996. k. It is the opinion of the ARBA Medical Advisor that a referral of her case to the Disability Evaluation System remains unwarranted. 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, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of her characterization of service. Upon review of the applicant’s petition, available military records, the Board concurred with the advising official finding the applicant’s condition is not associated with trauma and there is no evidence the applicant’s condition was incurred during or permanently aggravated by her military service. A referral to the DES is therefore not indicated. The Board agreed, based on the opine there is insufficient evidence to support correction of the applicant’s record to show she was medically retired for permanent disability instead of discharged from the Army National Guard for being medically unfit for retention. As such, the Board denied relief. 2. The Board determined DES compensates an individual only for service incurred 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, 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. National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), in effect at the time established standards, policies, and procedures for the management of Army National Guard (ARNG) enlisted Soldiers in several the functional areas, including Discharge. a. Chapter 8 (Discharge) provided that the separation of enlisted personnel from the ARNG is accomplished through discharge by appropriate State authorities. When Soldiers are discharged from the State ARNG (unless previously discharged by the Active Army from the Reserve of the Army status), they automatically become members of the Army Reserve if they have remaining contract time. This chapter provides guidance and reasons for discharging a Soldier from both the State ARNG and the Reserve of the Army. b. Paragraph 8-26 (Discharge from the State ARNG and/or Reserve of the Army) provides the reasons, applicability, codes and board requirements for administrative discharges from the Reserve of the Army and/or the State ARNG. Specific references to ARMY Regulation (AR)135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations) are cited. c. Paragraph 8-26y directs the reader to refer to AR 135-178 (Army National Guard and Reserve - Enlisted Administrative Separations), Chapter 12, and pertains to Soldiers discharged for being medically unfit for retention standards under the provisions of AR 40-501 (Standards of Medical Fitness). If a commander suspects a Soldier may not be medically qualified for retention, he or she will direct a Soldier to present themselves for a medical exam. A complete medical exam will be accomplished, and the results forwarded to the unit commander for disposition. If retention is not recommended a request for discharge will be submitted to the State AG. Additionally, the Soldier will receive a reentry code of 3. 3. Army Regulation (AR) 135-178 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. Chapter 12 (Separation for Other Reasons), paragraph 12-1 (Medically unfit for retention) states separation will be accomplished by separation authorities when it has been determined an enlisted Soldier is no longer qualified for retention by reason of medical unfitness. 4. 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. 5. 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. 6. 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. 7. 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. 8. AR 40-501 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. 9. 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) AR20230006254 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1