IN THE CASE OF: BOARD DATE: 4 January 2013 DOCKET NUMBER: AR20120008734 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his record to show he received a medical retirement. He also requests correction of item 9 (Command to which Transferred) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he retired with more than 20 years of service. 2. He states he had a temporary profile issued on 9 March 1984 shortly after he entered service for a possible seizure disorder. In 1985, he had ankle surgery resulting in a permanent profile excusing him from physical training, which he was made to do anyway. In 2003, he was issued a profile for degenerative joint disease of bilateral knees, neck, left ankle, and shoulder; degenerative disc disease (cervical and lumbar spine); and bilateral patellofemoral arthritis. 3. He states he completed more than 24 years of service for pay purposes. He remained on active duty with numerous injuries requiring profiles that kept him from performing certain duties. At the time of his discharge, he believes the [Physical Evaluation Board (PEB)] did not take any of this into consideration and only selected a minor preexisting injury to his knee as the basis for his discharge without taking note that the knee injury occurred in service. He states it is evident the board did not review his entire medical record. He feels he was unjustly discharged by a PEB in Texas that has the reputation of continuously treating veterans with contempt. 4. He provides: * DA Form 199 (PEB Proceedings) * orders * DA Form 2173 (Statement of Medical Examination and Duty Status) * pages from his service medical records * Physical Profile Board Proceedings * seven DA Forms 3349 (Physical Profile) * Medical Evaluation Board (MEB) Narrative Summary * three DD Forms 214 CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 16 May 1983, the applicant entered military service by enlisting in the U.S. Army Reserve (USAR) Delayed Entry/Enlistment Program (DEP). He was trained in and awarded military occupational specialty (MOS) 95B (Military Police – later converted to MOS 31B). 3. He served honorably in the Regular Army (RA) from 6 September 1983 to 29 September 1986. His Army Military Human Resource Record (AMHRR) does not include medical records for this period of service. 4. On 10 December 1986, prior to entering a second RA enlistment, he was referred for an orthopedic consultation for his left ankle and foot. The examining physician noted "no ortho problem." 5. On 11 December 1986, he enlisted in the DEP, and on 3 February 1987, he again enlisted in the RA. 6. On 2 June 1991, he was honorably discharged. His AMHRR does not contain medical records for this period of service. 7. On 8 January 1992, he underwent a medical examination for the purpose of enlisting in the Army National Guard (ARNG). He reported having broken a bone in his left ankle in 1986. The examining physician noted no defects and found him qualified for enlistment. 8. On 13 February 1992, he enlisted in the Georgia ARNG (GAARNG). On 3 August 1992, he was discharged from the GAARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) by reason of incompatible occupation. 9. On 30 November 1992, he enlisted again in the GAARNG. 10. A DA Form 2173, signed by an assistant adjutant for his commander on 12 January 1993, shows he injured his ankle on 10 January 1993 while performing the Army Physical Fitness Test (APFT). The injury was determined to have been incurred in the line of duty. 11. Medical records show he was seen on 12 January 1993 for a left ankle sprain. He was seen again on 20 January 1993, and the examining medical provider noted he felt the applicant's "situation warrants evaluation for fitness in the military." 12. On 30 July 1994, he requested release from the GAARNG due to not being able to pass the APFT and conflict with his civilian employment. 13. On 1 January 1995, he was discharged from the GAARNG and transferred to the USAR Control Group (Reinforcement). 14. During the period 2 January 1995 to 17 February 1998, he served in the USAR Control Group (Reinforcement) and USAR troop program units (TPUs). Effective 17 February 1998, he was honorably discharged from the USAR. 15. On 19 December 1998, he enlisted again in the USAR. Effective 31 March 2000, he was released from a TPU and assigned to the USAR Control Group (Reinforcement) due to employment conflict. 16. On 31 October 2001, he reenlisted in the USAR. During this enlistment, he served on active duty from 4 November 2001 to 1 May 2002 and from 7 July 2002 to 1 April 2003. Effective 10 April 2003, he was transferred from the USAR Control Group (Reinforcement) to a TPU. 17. On 19 August 2003, he underwent a medical examination due to reaching 40 years of age. The examining physician noted the applicant had: * "low back pain with fusion in past and neck pain with fusion" * "acid reflux with Barrett's esophagus" * "left ankle pain after fracture and 1985 operation" * "bilateral knee arthritis" The examining physician found him qualified for service. 18. On 28 August 2003, he was given a permanent physical profile for "degenerative joint disease of knees, neck and shoulder pain." The DA Form 3349 documenting the profile shows an MEB had been initiated. 19. Effective 3 September 2003, he was ordered to active duty for the purpose of "active duty medical extension." He was assigned to the U.S. Army Medical Activity Patient Holding Detachment at Fort Stewart, GA. 20. On 9 October 2003, he was given a permanent physical profile for "[degenerative disc disease] cervical and lumbar spine; bilateral patellofemoral arthritis; [degenerative joint disease] left ankle." The DA Form 3349 documenting the profile shows he was not to take the APFT and that a medical board was to be initiated. 21. MEB Proceedings, dated 5 November 2003, show he was diagnosed with: * "neck pain, status post interbody fusion of C5 and C6, mild; mild to moderate degenerative disc disease of the cervical spine" * "low back pain, status post lumbar sacral fusion; moderate degenerative disc disease of the lumbar sacral spine" * "bilateral patellofemoral arthrosis/arthritis" (right and left knee) * "moderate left ankle degenerative joint disease" 22. Each of the diagnoses listed in the MEB Proceedings was found to have existed prior to service. None was found to have been incurred while entitled to base pay. One diagnosis, bilateral patellofemoral arthrosis/arthritis of the right knee, was found to have been permanently aggravated by service. The MEB Proceedings show he was referred to a PEB. 23. On 21 November 2003, he indicated he agreed with the MEB findings and recommendation. 24. On 26 March 2004, a formal PEB convened to consider the applicant's fitness for continued service based on the MEB diagnoses. The PEB found the MEB diagnosis of chronic bilateral knee pain due to patellofemoral arthritis was unfitting, existed prior to service, and was permanently aggravated by a line-of-duty injury incurred on 12 August 2003. The PEB recommended a 20 percent (%) disability rating and separation with severance pay if otherwise qualified. The PEB found the remaining MEB diagnoses were not unfitting and, therefore, the conditions were not rated. 25. On 2 April 2004, the applicant indicated he did not concur with the PEB findings and recommendation. He indicated he did not wish to submit a statement of rebuttal. He acknowledged he understood that if he did not submit a statement explaining his reasons for disagreement, his case could be forwarded for final disposition action without review by the U.S. Army Physical Disability Agency (USAPDA). 26. The record includes an undated statement signed by the applicant, in which he requested his medical board paperwork be reevaluated to increase his disability rating to 40% for left ankle injuries incurred on active duty from September 1983 to June 1991. He stated, in part, that pain in his ankle, back, neck, and knees prevented him from performing physical training. He stated that after 19 years in the Army he did not want "20% cash" but did want his "medical benefits ID card 30% or more." 27. On 6 April 2004, he was notified the PEB had considered his rebuttal to the formal PEB findings and, after careful consideration, found no change to the original findings was warranted. 28. On 4 May 2004, he was notified the USAPDA had noted his disagreement with the PEB findings and reviewed his case. The USAPDA concluded his case was properly adjudicated by the PEB, which correctly applied the rules of the Physical Disability Evaluation System (PDES) in making its determination. 29. The record shows the USAPDA approved the PEB findings and recommendation on 4 May 2004. 30. On 3 June 2004, he was honorably discharged for disability with severance pay. The DD Form 214 issued at that time shows in: * item 9 – "USAR CON GP (IMA) AR-PERSCOM, 9700 PAGE BLVD, ST LOUIS, MO 63132" * item 12c (Net Active Service this Period) – "0000 09 01" * item 12d (Total Prior Active Service) – "0009 01 21" * item 12e (Total Prior Inactive Service) – "0011 00 27" 31. The orders effecting his discharge for disability with severance pay are not available. 32. His record includes an MOS/Medical Retention Board (MMRB) Summary showing an MMRB convened on 29 June 2006. The MMRB recommended the applicant be reclassified due his inability to perform duties in his MOS. The convening authority approved the findings and recommendations. 33. On 30 June 2006, the MMRB convening authority submitted a recommendation to the Commander, U.S. Army Human Resources Command-St. Louis (HRC-STL), that the applicant be reclassified from MOS 31B to a less physically demanding MOS. 34. In a memorandum to the Office of the Command Surgeon/Medical Board, dated 28 July 2006, the applicant stated if he were given a profile that allowed him to carry a 9mm handgun, there would be no need to change his MOS. He stated that as a military police noncommissioned officer (NCO) there were many jobs he could do with his profile, such as desk sergeant, training NCO, traffic investigator, or patrol supervisor. 35. On 21 September 2007, the applicant executed an Oath of Extension of Enlistment or Reenlistment extending his USAR enlistment for 6 months. 36. In a memorandum to an unspecified Surgeon General's office, dated 30 September 2007, he requested the MMRB change its finding to reclassify him to MOS 42A (Human Resources Specialist). He asked to be given a chance to finish his time in the USAR as a military policeman, as he had 10 more years to go for retirement. He indicated his duty performance had not been affected by his physical profile. 37. On 9 October 2007, the Assistant to the Command Surgeon, Physical Review Board, HRC-STL, assigned the applicant a 30-day temporary profile to allow him to obtain current medical evaluations and treatment and to provide copies of evaluations, diagnostic reports, and medical records. 38. On 15 November 2007, the applicant passed the APFT. He completed a 2.5-mile walk as an alternate aerobic event in lieu of the 2-mile run. 39. On 23 April 2008, the Assistant to the Command Surgeon, Physical Review Board, HRC-STL, found the applicant did not meet medical retention standards based on the following diagnoses: * "cervical spine degenerative disk disease, fusion with retained hardware (plate, screws)” * "lumbar spine degenerative disk disease, fusion (07/2001) with retained hardware (cage, screws)" * "bilateral knee pain: degenerative joint disease" * "left ankle pain: s/p injury & surgery (1985)" * "chronic gastroesophageal reflux disease, Barrett's esophagus" The Assistant to the Command Surgeon determined the applicant was nondeployable until cleared by a spine surgeon, orthopedic surgeon, and gastroenterology physicians. 40. On 23 April 2008, the applicant was given a permanent physical profile based on the conditions listed by the Assistant to the Command Surgeon. 41. The applicant's transaction history in Integrated Web Services shows an entry dated 16 June 2008 stating his case was closed as he should have been discharged in 2004. The entry indicates a discharge memo was written and forwarded for issuance of orders. 42. On 30 January 2009, a DD Form 215 (Correction to DD Form 214) was issued amending item 9 of his DD Form 214 for the period ending 2 June 2004 to read "NA." 43. On 23 February 2009, the Director, Enlisted Personnel Management Directorate, HRC-STL, informed the applicant's Member of Congress that: * on 4 May 2004, a PEB found the applicant physically unfit for duty and recommended he be separated with severance pay * the applicant was discharged with severance pay * item 9 of the applicant's DD Form 214 had been corrected * Soldiers accepting severance pay are not entitled to retired pay in accordance with Title 10, United States Code, sections 1212 and 1213 * the findings of the PEB superseded other subsequent personnel actions 44. His Chronological Statement of Retirement Points shows he completed 13 years, 1 month, and 25 days of service qualifying for retirement. 45. He provides documents showing, in part: a. On or about 14 September 1983, he was seen by medical personnel for complaints of back and abdominal pain. b. On 9 March 1984, he was given a permanent profile based on a possible seizure disorder. c. On 10 March 1987, he was seen by medical personnel for a complaint of knee pain. d. On 3 February 1988, he was given a temporary profile for "sinus tarsi syndrome left foot." e. On 22 August 1988, a radiologic examination found his lumbosacral spine, thoracic spine, and cervical spine to be normal. f. On 28 April 1999, he was given a permanent change of profile due to "left knee and ankle pain post surgeries." g. On 27 November 2002, he was given a temporary profile for right knee pain. h. On 27 May 2004, Headquarters, 3rd Infantry Division (Mechanized) and Fort Stewart, Fort Stewart, GA, issued Orders 148-0008 releasing him from active duty effective 7 June 2004, not by reason of physical disability. 46. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability (emphasis added). In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the PDES. 47. Army Regulation 635-40, chapter 4, contains guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB. The PEB evaluates all cases of physical disability equitably for the Soldier and the Army. The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board. It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating. Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability. 48. Army Regulation 635-40 states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. This regulation further provides that to be permanently retired for physical disability, a Soldier's disabling condition must have been incurred or aggravated while entitled to basic pay and the condition must be rated as 30% disabling or more. 49. Army Regulation 635-5 (Separation Documents) ) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes the standardized policy for the preparation of the DD Form 214. It states for item 9, from Table 2-1 (DD Form 214, Item 9 Entry Determinations), enter the applicable location dependent on the Soldier’s status on transition. Table 2-1 states to enter "NA" for Soldiers who are discharged with no further military status. DISCUSSION AND CONCLUSIONS: 1. The evidence of record does not support the applicant's request for correction of his record to show he received a medical retirement, nor does it support his request for correction of item 9 of his final DD Form 214 to show he retired with more than 20 years of service. 2. The applicant states the PEB failed to consider the physical profiles he received during his service; however, having had a temporary or permanent physical profile is not evidence of an unfitting condition. While a PEB may consider a physical profile in its deliberations, a final determination of fitness or unfitness is an assessment of several factors including the nature, cause, degree of severity, and probable permanency of the disability, as well as the physical requirements of the Soldier's particular office, grade, rank, or rating. 3. The PEB considered four MEB diagnoses and determined three were not unfitting. He was found unfit based on a diagnosis of chronic bilateral knee pain due to patellofemoral arthritis exacerbated by service that was 20% disabling. 4. The record shows the applicant was not properly discharged from the USAR following approval of the PEB findings and recommendations. It appears that proper discharge orders were not issued, which resulted in the applicant erroneously being listed as an active member of the USAR for approximately 4 years after his discharge. There is no evidence indicating this error did him harm, and the error has been corrected. Of note is the fact that, during this period, he argued he was fit to serve, notwithstanding his earlier argument that the PEB failed to capture the full scope of his unfitness. 5. With regard to the entry in item 9 of his final DD Form 214, the governing regulation provides the item will show "NA" for Soldiers who are discharged with no further military status. The record shows he was discharged for disability with severance pay. His DD Form 214 originally included an entry showing he had been transferred to the USAR Control Group (Individual Mobilization Augmentee). It appears this error is related to the failure to issue proper discharge orders. The entry has been corrected to show "NA" as required by regulation. He should note that his service is properly recorded in items 12c-12e of his DD Form 214. 6. In view of the foregoing, there is no basis for granting the requested relief. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ _x______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20120008734 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120008734 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1