ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20170001337 APPLICANT REQUESTS: • in effect, honorable physical disability discharge or alternately honorable discharge due to other physical or mental conditions in lieu of uncharacterized discharge due to entry-level performance and conduct • amendment of his date of discharge from active duty from 18 January 2002 to 5 September 2009 • personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: • DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 13 January 2017 • self-authored letter • personal journal from Basic Combat Training (BCT) • 40 pages of service medical records • 27 pages of service records • civilian certificates of training, achievement, instruction, license and evaluation • Department of Veterans Affairs (VA) Rating Decision, dated 13 June 2013 • DD Form 149 (Application for Correction of Military Record), 5 August 2013 • Army Discharge Review Board Case Report and Directive, dated 14 May 2014 • 20 pages of VA medical documents • 7 letters of recommendation • Office of the Staff Judge Advocate, Legal Assistance Office, Fort Benning, GA, document titled, “Injuries During Basic Training” • Fact Sheet from unknown source titled, “Chapter 11- Entry Level Separation” ? excerpt from Army regulation 40-501 (Standards of Medical Fitness) ? Clinical Study titled “Incidence and Time to Return to Training for Stress Fractures during Military Basic Training” FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), 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 enlisted in the U.S. Army Reserve (USAR) on 5 September 2001. He began active duty training at Fort Leonard Wood on 20 September 2001 and was discharged on 18 January 2002. This is his second appeal to the Board. His first appeal to the Army Discharge Review Board (ADRB) resulted in a denial, but after his careful review he found conflicting information he hopes to bring to light. For that reason, he is attaching copies of his journal he kept while in the military, character letters, records of achievements, a letter showing his Reserve Officer Training Corps (ROTC) involvement, as well as medical records. He has also included a clinical study on time required for Soldiers to return to duty after stress fractures and copies of extracts from Army regulations he has located and reviewed since the submission of his last application. b. His motivation was high when he enlisted as it opened a door to a job as well as payed for education that could also be done at the same time as he finished his last 2 years of ROTC training. After reviewing Army regulations, he has determined his discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11 due to entry-level performance and conduct was incorrect as he required a medical discharge due to his injuries. As proper procedures were not followed, the USAR Liaison, was left out of the loop except for the one chance she had to meet with him about the entry-level separation, which the USAR Liaison did not concur with. She was unable to help him as his chain of command made it very clear he would receive nonjudicial punishment under Article 15 of the Uniform Code of Military Justice if he continued to push for a medical discharge. c. Once it was made clear to him what his command planned to do, he realized these individuals would gladly stab anyone in the back without telling them person to person. You will find hints of the treachery on both Captain (CPT) T____’s and Sergeant (SGT) S____’s counseling statements. His journal entries for those dates show that the dates and the signatures of the counseling statements are “fishy”, as he was not counseled on those dates. His journal entries contain more information regarding his injuries as well as his experiences under his chain of command. d. His hope was the Board would have caught these discrepancies the first time he applied, but he is now learning from that experience to deal with the issues head on. He will be in person before the ABCMR and all he asks is it be held at the nearest location to St Louis as traveling long distances now aggravates his health. He has maintained his motivation and found another way to complete his Master’s degree while continuing to improve himself. He attached several certifications with his application which show his ambition for improvement. He never got in trouble with the law because that would impact some of the places he worked, including his last job as shuttle driver for the University Police Department at Eastern Illinois University. He also included multiple civilian employment evaluations. e. His health began getting worse on 3 May 2013, and had to flag himself as medically unfit. After several years of treatment, it has become clear to his VA doctors that the injuries incurred while on active duty are the result of his health issues. His VA Compensation and Pension Exam (C&P) from 2002 shows retrolisthesis (backward slippage of a vertebra) grade 1 on his spine and after much effort he was able to acquire his missing Army medical documents with the help of a civilian doctor who inquired directly of the hospital at Fort Leonard Wood. Dr. K____ has provided a report finding somatization (recurrent and multiple medical symptoms with no discernible organic cause, but rather physical symptoms of a psychiatric condition such as anxiety) based on his Army medical records and Dr. J____ has pinpointed his health decline as starting in 2001. f. His records request through the office of his member of Congress in 2001 was never fulfilled, instead a letter was sent in response stating he would not be separated until medically cleared for separation and if test results should reveal that an administrative separation would not be appropriate, his type of discharge would change. This medical clearance process never happened because an entry-level separation does not require a medical clearance. Therefore, his separation was signed off on without anyone following up to ensure the regulations were followed. Until the very end he tried to change his discharge, even requesting a visit to the Chaplain, which was denied. The denial of a Soldier’s request to see the Chaplain is against regulatory guidance, as such visits keep Soldiers’ mental and physical wellbeing intact, but his command knew if they intervened in the discharge process, there would be a lot of problems, so they denied his visit to the Chaplain. In his journal the Board will see many other regulatory violations of committed by his command, including forcing a private to drink excess amounts of water which could result in health issues. g. Since he has to go to all this trouble to research these regulations that were broken, he is now asking for an upgrade to his discharge to honorable and the separation authority for his administrative discharge should be changed to Army Regulation 635-200, chapter 5, because of other physical or mental conditions not amounting to a disability, as he is of the understanding that the ABCMR cannot grant a medical discharge. He is additionally asking that his date of discharge be changed to accommodate the 90 days required to receive a permanent physical profile, plus the 6 months of physical therapy rehabilitation he would have required, plus his restart to week 5 of BCT with the additional 6 weeks for advanced individual training, all of which would place his discharge at around 1 year from the date he received, or even more preferable, to the end of his service contract date of 5 September 2009, which is what he would prefer as it took his so many years to acquire the missing data in addition to having to bring this injustice to light. h. He will not push for the rank upgrade he could be granted on the principle of a Soldier being held hostage by an enemy based on consideration of his command placing him in virtual jail due to their violations of regulations, unless he could justifiably achieve a rank upgrade. Following this principle of being held hostage by an enemy would require his rank to increase at intervals established by guidelines and given his preference at the time to go finish his last 2 years of ROTC, which would have resulted in a commission as an officer, that alternative would have satisfied him. As far as seeking pressing legal actions against his former command, it is not worth the effort based on repeated views from news of Soldiers who break the rules and get a mere slap on the wrist instead of the actual full punishment required. He has no desire to insight bad Karma in his life which could only result in negativity toward him. i. After his VA C&P Exam in 2016, it was determined his depression and somatization were a result of his injuries he incurred on active duty and were rated at 100 percent. Although this would be cause for celebration, his genetics doctor from the VA has found four anomalies with his DNA thus far and has yet to classify them as mutations or inherited, although he is leaning toward mutation as he is the first in his family to have these health issues. He will be returning to see his neurologist who has been working on diagnosing the neuromuscular disease that is destroying his body. He maintains honesty, integrity, morality, and honor in his life as he still tries to help those around him. Both his chain of command and his doctor violated Army regulations and with regard to the physical therapist, he only send one email in November 2001 and nothing afterward showing the results of bone scans and failed to properly clear him for discharge. 3. The applicant provided a letter from Lieutenant Colonel R____ H____, Chair, Department of Military Science, Western Illinois University, wherein he states the applicant attended ROTC classes during his freshman and sophomore years at Western Illinois University from 1997 – 1999. There is no evidence of record of ROTC affiliation beyond that date. 4. A DD Form 2808 (Report of Medical Examination), shows he was medically cleared for service after examination on 5 September 2001, showing no medical conditions or diagnoses. The applicant subsequently enlisted in the USAR on 5 September 2001 and entered initial active duty for training on 20 September 2001. 5. The applicant provided a 49 page journal he states he wrote while in BCT. His initial entry on 14 November 2001, states he went to sick call that morning and was returned to duty by the doctor. He went from the doctor to the range then returned to the barracks with his platoon where they were subjected to a “smoke session” which lasted 2.5 hours. As part of the session, they had to perform fireman carry drills, resulting in a painful injury to his back and neck. 6. A DA Form 5181-R (Screening Note of Acute Medical Care), dated 15 November 2001, shows he arrived at the medical clinic on the date of the form with complaints of neck and back pain for the past day. The exam showed he was tender over postcervical muscles with pain with motion. The impression was acute muscular strain increased in neck and back. He was given a 3-day physical profile. 7. The applicant provided an email from the Physical Therapy Chief, dated 28 November 2001, which states the applicant presented on the day of the email with numerous complaints in his legs and back. The applicant was in poor physical shape and had primarily muscular back pain related to physical exertion at a level he was not physically prepared to perform. He also appeared to have overuse type leg pains which were likely to be stress reaction in nature. He was given exercises to perform for his back and instructed to return to the clinic in 2 days for evaluation of his legs. The Physical Therapy Chief stated he could say with certainty the applicant would not graduate from BCT and given his physical condition, number of complaints, and amount of training completed, he would not be a candidate for a physical therapy rehabilitation program. The physical therapist would continue with the diagnostic process and inform of the results. 8. A DA Form 4856, dated 6 December 2001, shows the applicant received developmental counseling from his company commander on the date of the form. a. He was counseled regarding his commander’s intent to recommend him for entry- level separation in accordance with Army Regulation 635-200, chapter 11, for entrylevel performance and conduct. His recommendation was based on the applicant’s failure to meet Army standards, missing too much training due to injury, lack of motivation or desire to continue to train as a new start out in another company, failure to adapt to military service, and the recommendation of the physical therapist. b. He could not complete the requirements of BCT due to his injury and was given an opportunity to new start out, but informed his first sergeant on 5 December 2001 that he declined the opportunity. His first sergeant confirmed that after their conversation, the applicant stated he had no desire to continue training and did not possess the proper attitude and level of motivation necessary to become a Soldier in the Army. c. The applicant signed the form on 6 December 2001, disagreeing with the information contained in the counseling statement. He wrote he disagreed with the doctor. The pain has been greater than 21 days induration and the last doctor gave him a different diagnosis for the same problem. The pain began after a 2.5 hour “smoke session” and he reported to the first doctor about hearing something pop in his back, but the doctor ignored it. As the pain has yet to subside, he thinks there is something else wrong. 9. A DA Form 4856, dated 7 December 2001, shows the applicant receiveddevelopmental counseling from the Reserve Component Liaison Officer (RCLNO), Sergeant Major (SGM) J____ M____ on the date of the form. a. The applicant was referred to the RCLNO for entry-level separation counseling and the RCLNO indicated on the form he did not concur with the entry-level separation because the applicant had a physical profile and indicated he had an appointment to see a physical therapist on 18 December 2001. He also indicated the applicant expressed his desire to be rehabilitated and returned to training. b. The RCLNO indicated a Soldier should not be separated solely for entry-level performance and conduct unless there have been efforts at rehabilitation and adequate counseling. c. The applicant signed the form on 7 December 2001, agreeing with the summarized points of the counseling session. 10. A partial letter from the Office of the Adjutant General, U.S. Army Maneuver Support Center and For Leonard Wood, to the Honorable John M. Shimkus, dated 14 December 2001, replied to an inquiry initiated by the applicant’s father regarding the applicant. It states: a. The applicant’s company commander recommended he receive a discharge because of his poor physical condition, numerous injuries, lack of motivation, and lack of desire to become a Soldier. The applicant stated he did not wish to complete training. b. The company commander did not recommend the applicant receive physical rehabilitation because the physical therapist would not approve his admission to the rehabilitation program and stated that given his physical condition, numerous complaints, and lack of progress, he would not be a candidate for the physical training rehabilitation program. c. The applicant received proper medical treatment. X-rays of both legs revealed normal results. A bone scan has been scheduled for 17 December 2001, to rule out stress fractures even though he has not had symptoms consistent with stress fractures. The company commander counseled the applicant and informed him he would receive an administrative discharge for lack of motivation. However, he would not be discharged until medically cleared for separation. If test results should reveal that an administrative discharge would not be appropriate, the type of discharge would change. 11. A Radiology Exam, dated 17 December 2001, shows the applicant was underwent bone imaging and evaluated for stress a fracture of the right hip and bilateral legs on the date of the form. The findings were consistent with: • healing stress fractures of the posterior calcanei (large bone forming the heel) • probable urine contamination artifact over the left inferior pubic ramus (part of the pubic bone) region • stress changes of the knees, ankles, and remaining proximal tarsals (cluster of seven articulating bones in the foot) 12. The applicant provided a copy of a medical exam conducted by a civilian provider, dated 27 December 2001, which states the doctor’s clinical impression of the applicant’s condition was post-concussion syndrome with post-concussion headache and whiplash injury. His recommendation was conservative treatment in which the applicant should avoid re-injury while exercising. 13. A third DA Form 4856, dated 7 January 2001, shows the applicant again receiveddevelopmental counseling from his company commander on the date of the form with regard to his recommendation for entry-level separation for refusal to train and lack of motivation. The applicant was advised to not prolong the separation process by forcing the chain of command to impose punishment on him, to keep all scheduled appointments, and to utilize his chain of command to resolve problems and concerns. The applicant did not sign the form. 14. A memorandum signed by the legal clerk for the retraining and Holding Unit,Training Support Battalion, dated 10 January 2002, states the applicant was recognized for separation from the service under the entry-level separation program in accordance with Army Regulation 635-200, chapter 11 for lack of motivation. It further states the applicant was sent to the RCLNO in December 2001 and did not require recounseling. 15. On 11 January 2002, his immediate commander notified him of his intention to initiate action to separate him from the Army for motivational reasons under the provisions of Army Regulation 635-200, chapter 11. The reasons for the proposed actions were the applicant’s refusal to train or adapt to military life, failure to follow the Army core values, lack of self-discipline and the motivation necessary to complete BCT. Further attempts to train were not justified. The applicant was advised of his rights, including his right to consult with counsel and submit a written statement in his own behalf. 16. On 11 January 2002, the applicant acknowledged the notification of the initiation of his separation from the Army and advisement of his rights. 17. On 11 January, his battalion commander reviewed the separation recommendation for the applicant and waived the requirement for rehabilitative transfer as the applicant refused to train, failed to adapt to military life and lacked the self-discipline and motivation to complete BCT. He recommended the issuance of an entry-level separation. 18. U.S. Army Maneuver Support Center and Fort Leonard Wood Orders 017-0356, dated 17 January 2002, discharged him from the USAR effective 18 January 2002 under the authority of Army Regulation 635-200. 19. His DD Form 214 (Certificate of Release or Discharge from Active Duty) sows he was discharged from the Army on 18 January 2002, under the provisions of Army Regulation 635-200, chapter 11, for entry-level performance and conduct, after 3 months and 29 days of net active service this period. He was not awarded a military occupational specialty and his service was uncharacterized. 20. A VA Rating Decision, dated 13 June 2013, shows the applicant was granted the following service-connected disability ratings effective 28 February 2011: • lumbar myofascial pain syndrome (chronic muscular pain disorder affecting any skeletal muscles) with minimal broad based disc bulge at L4-5 and L5-S1 with patent neural foramina (normal opening of the holes through which the nerve roots exit the spinal column), 20 percent • radiculopathy (nerve compression), sciatica nerve, left lower extremity, 20 percent • radiculopathy, sciatica nerve, right lower extremity, 20 percent • plantar fasciitis (inflammation of the ligament connecting the heel bone to the toes), 20 percent • patellofemoral pain syndrome (runner’s knee) of the right knee (limitation of extension), 10 percent • patellar subluxation of the right knee, 10 percent • patellofemoral pain syndrome of the left knee (limitation of extension), 10 percent • patellar subluxation of the left knee, 10 percent • iliotibial band tendonitis (pain on the outside of the knee) with mild degenerative changes, left hip (limitation of extension), 10 percent • iliotibial band tendonitis with mild degenerative changes, right hip (limitation of extension), 10 percent 21. The applicant applied to the ADRB on 5 August 2013, requesting amendment of his discharge to reflect honorable discharge due to physical disability. On 14 May 2014, the ADRB denied his request after review of all available evidence, determining he was properly and equitably discharged. 22. The applicant submitted numerous letters of recommendation and character statements which attest to his regular attendance at church, his helpful nature, his motivation in completing his Master’s degree, and honesty. 23. On 8 February 2017, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. a. The advisory opinion details eight medical visits the applicant underwent while in BCT. On 15 October 2001 he was seen for back pain and sinus trouble, both of which had their onset roughly 1 week prior. He was also seen for ankle pain, neck and back pain, legs and back pain, hip, leg, and back pain between October and December 2001. b. A limited review of VA records shows the applicant has a problem list including low back pain, degenerative disc disease, obstructive apnea, adjustment disorder, dysthymia, somatization disorder, gastroesophageal reflux and has a service related disability rating of 10 percent. c. The applicant met medical retention standards for multiple stress fractures and overuse symptoms with associated pain (as noted on the December 2001 bone scan) in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). The applicant’s medical/physical condition had not reached a medical retention decision point required to implement medical evaluation board processing. Convalescent leave at home with minimal activity, a common recommendation based on the applicant’s physical examination, was not recommended by unit leadership. The applicant continued with physical activity, albeit much limited, but still involving a lot more ambulation than one with pain would typically do at home while recuperating. d. Stress fractures most often occur as a result of overuse and the first treatment includes stopping the activity that brought on the fracture. A period of rest is needed. Time away from the physical activity may be needed for up to 6-8 weeks. Exercise can and should continue, but a low-impact form of exercise is recommended. e. The applicant’s medical conditions were duly considered during his separation processing. A review of the available documentation found some evidence of a medical condition which may support a change to the character or reason for the discharge in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 24. The applicant was sent a copy of the advisory opinion on 13 February 2017 and given an opportunity to submit comments. The applicant responded on 22 February 2017 stating: a. He checked his journal entry for 15 November 2001 and sees he annotated he could not turn his neck due to the muscles being flared out. The doctor stated it felt like an overinflated tire. Also his calf muscles had increased in size, which his neurologist at the VA now diagnosed as muscle hypertrophy. One of the drill sergeants gave him the nickname of Popeye due to the size of his calf muscles. He also notes he was never issued crutches and if they had been, that would have been annotated in his medical records. b. His civilian physician note from December 2001 shows all of his service medical records were provided to him for review during the exam. He also made an annotation in his journal on 13 December 2001 that he fell down a flight of stairs in the barracks and blacked out after hitting his head. He tried to notify his chain of command of the fall, but they were all too busy. He was hit on the head at other times as well, such as during helmet checks at the range to ensure no one was hiding rounds and once at the obstacle course. c. He is requesting a personal appearance before the Board at the nearest location to Macomb, Illinois. 25. 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. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are commandreferred for a fitness-for-duty medical examination. b. The mere presence of 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 26. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier is in an entry-level status at the time separation action is initiated. b. Chapter 5 pertains to separation for the convenience of the Government. It states unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status. Paragraph 5-17 provides guidance on separation based on other designated physical or mental conditions not amounting to a disability. Such conditions may include, but are not limited to: • chronic airsickness • chronic seasickness • enuresis (bedwetting) • sleepwalking • dyslexia • severe nightmares • claustrophobia • other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the soldier’s ability to effectively perform military duties is significantly impaired c. Chapter 11 provides for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. When separation of a Soldier in entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, he or she will normally be separated per this chapter. Service will be uncharacterized for entry-level separation under the provisions of this chapter. This policy applies to Soldiers in the Regular Army, Army National Guard (ARNG), and USAR who have completed no more than 180 days of continuous active duty or initial active duty for training (IADT) or no more than 90 days of Phase II under a split or alternate training option. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, evidence in the records, a medical advisory opinion and published DoD guidance on consideration of discharge upgrade requests. The Board considered the applicant’s statement and supporting documents, his record and length of service, the medical treatment records, the reason for his separation and the character of service he received. The Board considered the applicant’s VA rating, the conclusions of the medical advisory opinion and the applicant’s response. The Board found, as stated in the advisory opinion, that the applicant met medical retention standards at the time of his separation, there is no evidence of a permanent profile, that his conditions were duly considered during separation processing and that separation for a physical disability was not warranted. The Board also found that the applicant was still in an initial entry status at the time of separation. The Board found no evidence of the applicant serving on active duty past 18 January 2002 and that he was still in an entry level status when separated. Based on a preponderance of evidence, the Board determined that the character of service, the narrative reason and the date of his separation were not in error or unjust. 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. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-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 Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 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. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are commandreferred 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 or 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 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 are either 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 onetime 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 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. 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. e. 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. 4. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. 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. 5. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 3 states a separation will be described as entry level with uncharacterized service if the Soldier is in an entry-level status at the time separation action is initiated. b. Chapter 5 pertains to separation for the convenience of the Government. It states unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status. Paragraph 5-17 provides guidance on separation based on other designated physical or mental conditions not amounting to a disability. Such conditions may include, but are not limited to: • chronic airsickness • chronic seasickness • enuresis (bedwetting) • sleepwalking • dyslexia • severe nightmares • claustrophobia • other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the soldier’s ability to effectively perform military duties is significantly impaired c. Chapter 11 provides for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry-level status. When separation of a Soldier in entry-level status is warranted by unsatisfactory performance or minor disciplinary infractions (or both) as evidenced by inability, lack of reasonable effort, or failure to adapt to the military environment, he or she will normally be separated per this chapter. Service will be uncharacterized for entry-level separation under the provisions of this chapter. This policy applies to Soldiers in the Regular Army, Army National Guard (ARNG), and USAR who have completed no more than 180 days of continuous active duty or initial active duty for training (IADT) or no more than 90 days of Phase II under a split or alternate training option. d. Section II (Terms) of the Glossary defines entry-level status for Regular Army Soldiers as the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break of more than 92 days of active military service. For ARNG and USAR Soldiers, entry-level status begins upon enlistment in the ARNG or USAR. For Soldiers ordered to IADT for one continuous period, it terminates 180 days after beginning training. For Soldiers ordered to IADT for the split or alternate training option, it terminates 90 days after beginning Phase II of Advanced Individual Training. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. 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. ABCMR Record of Proceedings (cont) AR20170001337 ABCMR Record of Proceedings (cont) AR20170001337 1 2 1