ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20170009649 APPLICANT REQUESTS: request his medical evaluation board (MEB) packet be reviewed to determine if he should be medically discharged instead of being transferred to the Retired Reserves due to being medically disqualified – not result of own misconduct. He further requests retirement pay be initiated effective 20 December 2011. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Medical Documents * Letter from Department of Veterans Affairs (VA) 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 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’s states he believes his unit administrator and junior non- commissioned officers (NCOs) were not aware of changes that occurred from 2009 through 2011. NCOs were transferred to other units before scanning his documents. There was no guidance from the battalion or higher echelon to support his packet or to answer his questions. He has more than one line of duty (LOD) injury and permanent 3 profiles which would have allowed him to be medically discharged from the military. The MEB was initiated on 9 August 2010, and he received his medically disqualified orders one year later. He did not waive his right to pull his packet. In fact, his packet was never reviewed or completed. His MEB was initiated due to a Soldier Readiness Program (SRP) his unit was going through. He was informed at that time that he was not going to deploy due to his medical issues. His DA Form 199 (Physical Evaluation Board PEB) Proceedings) was never given to him and DA Form 5892 (Physical Evaluation Board Liaison Officer (PEBLO) Estimated Disability Compensation Worksheet) was never completed. He was not given an Advisement of Rights and was not assigned a PEBLO. 3. The applicant's military records show he was born on 17 November 1966. Following a period of enlisted service in the U.S. Army, the applicant enlisted in the U.S. Army Reserve (USAR). 4. The applicant was ordered to active duty in support of Operation Enduring Freedom (OEF). He entered active duty on 28 May 2002 and was released from active duty (REFRAD) on 27 May 2003, due to completion of required active service. 5. A Report of Investigation LOD and Misconduct Status, dated 12 March 2004, shows the applicant was injured while unloading a 7 ton truck. His diagnosis was torn muscles and ligaments to the upper back, right shoulder and back. It was determined to be in LOD. The applicant was seen by Chilean Surgical Officer and informed to rest and not lift more than 10 pounds and he was given an anti-inflammatory to take for 10 days. 6. On 6 January 2005, the applicant was issued a DA Form 3349 (Physical Profile) assigning him a temporary level-3 profile based on surgery. 7. An NCOER report for the period February 2004 through January 2005, shows the applicant was rated “Among the Best”, and states profile does not hinder duty performance. 8. A DD Form 214 shows the applicant entered active duty on 14 September 2005, and was honorably REFRAD on 11 March 2006 due to completion of period active duty training; however, another DD Form 214 show the applicant entered active duty on 3 January 2006 and was honorably REFRAD on 29 June 2007, due to completion of period of active duty training. 9. An NCOER report for the period 1 February 2007 through 30 June 2007, shows the applicant was rated “Among the Best”, and states the applicant passed his army physical fitness test (APFT) and implemented a robust and demanding physical fitness program for the G4 Directorate. 10. On 12 July 2008, the applicant was issued a DA Form 3349 (Physical Profile) assigning him a permanent level-2 profile due to degenerative disc, cervical. 11. An NCOER report for the period 3 April 2008 through 2 April 2009, shows the applicant was rated “Among the Best”, and states the applicant improved his fitness by passing his last APFT, and maintained physical readiness. 12. On 29 June 2010, the applicant was issued a DA Form 3349 (Physical Profile) assigning him a permanent level-3 profile based neck injury, back pain, ankle knee and hip pain. The form indicated the applicant needed a non-duty PEB. 13. The applicant's record contains a memorandum rendered on behalf of the Command Surgeon, 63rd Regional Support Command (RSC), Moffett Field, CA on 12 July 2010 in order to inform the Commander, 63rd RSC that a review of the applicant's medical records indicated he did not meet the retention requirements of Army Regulation 40-501 as a result of his neck injury, back injury, ankle knee and hip pain. The applicant was informed he could elect consideration by a non-duty related (NDR) PEB or a duty related physical evaluation. He was informed that NDR PEBs are limited to fitness determinations and cannot award disability compensation. The applicant was informed that, if he elected to undergo a NDR-PEB or duty related PEB, he must assemble legible photocopies of all documents he wanted the board to consider and forward them through his chain of command. He was given a suspense date of 13 August 2010. 14. On 13 August 2010, the applicant acknowledged receipt of the notice regarding his medical disqualification and the options available to him. He contended that his injuries were duty related (occurred on duty status) and requested an informal PEB to review his medical records for a final determination of his medical fitness for retention. He indicated he had an approved LOD to validate his request and was supplying it with his response. He also indicated he would prepare a packet in accordance with the enclosed checklist within 45 days of this election and failure to do so would result in his discharge. 15. The applicant’s record is void of a packet requesting an informal PEB and he does not provide a copy of a packet; however, he does provide a memorandum he submitted to Commander, 4th ESC, ATTN: G-1, Enlisted Personnel, San Antonio, TX, subject: Medical Evaluation Board, dated, 13 August 2010, listing his injuries with corroborating dates. In the memorandum, he request he be granted all retirement and full benefits for the service and commitment he had given to the U.S, Army and the U.S Army Reserve. 16. His record contains a letter from the U.S. Army Human Resources Command, St. Louis, MO, dated 18 November 2010, wherein the Deputy Director, Personnel Actions and Services notified the applicant that he had completed the required years of service to be eligible for retired pay at age 60 (20-Year Letter). The applicant will turn age 60 on 17 November 2026. 17. On 21 November 2011, the applicant was assigned to the Retired Reserve effective 20 December 2011 due to being medically disqualified – not result his own misconduct. 18. On 17 April 2019, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. The ARBA senior medical advisor concluded a review of the available documentation found insufficient evidence of a medical disability or condition that would support a change to the character and/or reason for the discharge in this case. After comprehensive review of the medical and other records, the ARBA Medical Advisor concludes that there is insufficient cause to recommend a change in the USAR Medical Disqualification in this case. If additional information and/or medical data is desired, consider a USAR medical advisory. The Army has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation. Congress grants that role and authority to the Department of Veterans Affairs, operating under a different set of laws. A copy of the complete medical advisory was provided to the Board for their review and consideration. 19. In response to the medical advisory, the applicant provided 55 pages of additional documents to include a copy of the medical advisory, letter from Case Management Division, letter to Judge W, 25 pages of document pertaining to his USAR Retirement points, and two letters of support. 20. A letter from Letter from his ex-wife states, in part, the applicant is an honorable and distinguished Soldier and has always understood his commitment to military life and his calling to be Soldier. She continues to be proud of his service and sacrifice. They could not have known the toll that War would have on them and their marriage. There was a heavy price they paid. The applicant joined the Army in 1989 and they started their military life at Fort Bragg, NC. He was released from the military in September 1989 and they moved to Texas. Transitioning to civilian life was difficult for the applicant because he loved being a Soldier. Shortly after returning to Texas, the applicant found a Reserve unit. A few months later he was deployed in support of Operation Desert Shield. He deployed on four other occasions b. Within five days of their wedding, he left for Operation Just Cause. When he returned he was irritable, aloof, and secretive. He never talked to her about where he was, nor, what he did while he was gone. She never asked, she understood that to be the norm for any future deployments. It took about two weeks for them to re-adjust to each other and he started drinking heavily with his fellow Soldiers every weekend until they relocated to Texas. c. During this Desert Storm deployment the applicant wrote to her almost daily and called very often. When he returned to her he was not the same. He was ill from chemicals he was exposed to in the oil fields in Iraq. He shared that he was waist deep in oil & sand. He also shared that he saw unimaginable scenes of death (i.e. the Highway of Death) & destruction. He was at the Highway of Death and participated in clearing Kuwait City, Kuwait after the Iraqi Army fled. He suffered a concussion blast in Kuwait City, Kuwait and was never treated for it. It took them a week or longer to get him back to the rear. He complained of his equilibrium being off and his head felt like being inside a bell ringing and humming that did not stop for weeks. He also injured his right and left rotator cuffs while he was at Desert Storm. He complained about ringing in his ears that made it difficult for him to focus. Most of the nightmares he had stemmed from this experience and what he saw and had to do. He found it difficult to sleep and started drinking daily. He could not be around large crowds of people; public situations caused high levels of anxiety. He could only relax if he drank, so he drank a lot with his fellow Soldiers he had been deployed with. He had lucid nightmares waking up agitated and very disoriented. He lost count of how many times he woke up looking for his gun, gas mask or clearing the house. Several times he woke up choking her or holding her arm asking her who she was, or what she was doing there, or to identify herself. Once these events happened he could not go back to sleep easily, if at all. He was afraid he was going to really hurt her so he started to sleep on the couch. d. This strained their relationship, she really missed her husband. He became more secretive, aloof & withdrawn; he found it difficult to talk to her about what he was going through. He had suffered a knee impact injury as a Parachutist at Ft. Benning, GA early in his Army career which became exacerbated during this deployment. They were unable to have sex upon his return for 3 months, due to the chemicals he was exposed to that made them both very ill and caused unexplained bleeding for her and a miscarriage later. He became angrier and aggressive in everyday life during this time. He never hit her or yelled at her. He sought to spend a great deal of time alone. This lasted a little over 6 months. He was never the same. Although they survived his Desert Storm deployment, he found it very difficult to transition to civilian life. He became a Police Officer, he was still drinking to get drunk but he tried to keep it to weekends and family celebrations. When he drank he became mean, but it is really the only time he ever spoke about the things that he saw, did, and witnessed during Desert Shield/Storm. During this time they moved to San Antonio Texas and he decided that he missed military life so he joined another Engineering Reserve Unit. His next deployment was to Belize to build roads, schools, and medical clinics. He wrote often and this deployment seemed to be a positive one. He also attended multiple military schools during this time working toward promotion. He was not challenged in this Unit and decided to stay with 808th Engineer's. His next deployment was to Uzbekistan in Operation Enduring Freedom. He was activated in April and gone by May. He returned in January 2003. He only wrote a handful of times and called even less. It was a very trying deployment for both of them. With little communication from him, she is unable to describe much as to his experiences there. e. The responsibility required of his position was very demanding and taxing. He forgot her birthday, they lost their baby and she almost died, four months after he deployed. He never called during her hospitalization or recovery. It was almost two months gone before he called her for less than 10 minutes. When he returned he was completely detached from her and civilian life in general. She has often said in therapy that she felt her husband's injured body and mind came back from the War but her husband never returned to her. They were two strangers unable to connect. His shoulder had been re-injured in theatre, he busted his lower back and hip, and was suffering from (what I believe we're migraine headaches). He had injured his neck and his knees were causing a great deal of pain for him. He could not talk to her and he drank every afternoon and weekend. He sought out fellow Soldiers to drink with and stayed away from home as much as possible. He was very angry and she believes depressed. During the evenings and for the first time in their relationship he became verbally abusive and physically abusive, specifically with her. He stopped sleeping with her. He could not go to sleep or sleep through the night unless he was drunk or exhausted. f. He was only home for a few months, after Operation Enduring Freedom, when he volunteered to go to Haiti 2004. He was gone pretty quickly after that and they only talked 2 times during that deployment. When he returned, months later, he was still angry, drinking, unable to sleep, experiencing nightmares. He began to "zone out" in the middle of a family visits, breakfast, and dinner like a waking sleep. They were separated that spring and tried counseling. He refused to follow through. He refused to talk about anything. He was having nightmares often, unable to focus on work, on them, on anything. His work suffered, he was a civilian Department of the Army Police officer at Fort Sam Houston, but found it difficult to find his balance. He was always unhappy and it showed in everything he did and didn't do. There was callousness about him that he never had before. He was struggling in family relationships, work relationships. During their separation, they tried to spend time together. She remembers finding him crying uncontrollably, hiding alone. They were emotional outbursts of deep sadness about events that transpired during the war campaigns. Her husband never cried about anything, so she had never been able to forget those times. She wanted to help him but he was completely closed off and would not acknowledge that he needed help and was in danger. He was never able to share the things that caused him such great emotional pain except to say that he was filled with regret. Healthy transitioning from these last two deployments was never witnessed by her during their marriage. They divorced in April 2003. The applicant’s service is a source of pride and accomplishment for him, as well it should be. Her only wish is that the Veterans Administration would acknowledge, fully support, treat the physical and emotional damage that resulted from PTSD, TBI, and other injuries for his dedicated service. There are many casualties of War and their marriage was one of many. 21. A letter of support from sergeant first class (SFC) retired, T states: a. He has known the applicant for over 31 years and had the honor and privilege of serving with him while stationed together at Fort Bragg, NC until 1889. While at Fort Bragg, they trained and supported each other during various exercises and since leaving NC, they served during numerous combat operations in some of the same locations and periods of time throughout the world. He can relate to the applicant about some of the horrific events he had endured and can say without a doubt it take a toll on a person involved in some of the situations the applicant along with himself and others have witnessed or have taken part in. The applicant has always been a person with the utmost integrity. The applicant could always be depended upon no matter the situation, with an untiring attitude and was never one to complain or cut corners. b. Over the past 31 years, he has kept in touch with the applicant. He has always felt they could talk to each other about anything. They have served in some of the same difficult environments and the applicant has some of the same issues he have with adapting /transitioning back to civilian life. He feels he was more fortunate in being able to receive assistance through the Veterans Administration for his service/combat related injuries while the applicant has had to continue fighting to receive the benefits he deserves. He feels the applicant has earned the right to his retirement and should be afforded he same treatment and due process as others before him have been given, after having served and defended this great nation throughout his 25 years of service. 22. 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. 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 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. 23. Pursuant to Department of Defense Instructions (DODIs) 1332.18, Separation or Retirement for Physical Disability (4 November 1996) and 1332.38, Physical Disability Evaluation (14 November 1996), Reserve component (RC) members with nonduty related impairments (which were neither incurred nor aggravated while performing duty) are eligible for referral to the PEB solely for a fitness determination. However, and as further clarified in the current version of DODI 1332.18 (17 May 2018), RC members who are pending separation for duty-related conditions may enter the disability evaluation system (DES) for a determination of fitness and for a determination of whether the condition is duty related. Duty related conditions are those incurred or aggravated while the AC or RC Servicemember was performing duty. 24. 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. 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. 25. Army Regulation 40-501 (Standards of Medical Fitness) 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. 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. Normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 or discharged from the USAR per AR 135–175 (Separation of Officers) or Army Regulation 135–178 (Enlisted Administrative Separations). They will be transferred to the Retired Reserve only if eligible and if they apply for it. c. Reservists 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. Reservists with nonduty 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. Paragraph 3-3 states that USAR 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 of the AR 40-501. The reasonable inference of this is that, USAR Soldiers whose medical conditions were incurred or aggravated during an active duty period will be processed through the regular IDES process. d. Paragraph 9-12 states Reserve component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Reserve component Soldiers with nonduty related medical conditions, MEBs are not required and cases are not sent through the PEBLOs (Physical Evaluation Board Liaison Officers) at the military treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USARC Regional Support Command or the U.S. Army Human Resources Command Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. 26. 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. 27. 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. 28. Title 10, U.S. Code, sections 12731-12737 authorize retired pay for Reserve Component (RC) military service. To be eligible for retired pay under this law, a Reserve Soldier, upon attaining age 60, must have completed a minimum of 20 qualifying years. After 1 July 1949, a qualifying year is defined as a year in which at least 50 retirement points are earned. 29. Title 10 U.S. Code, section 3914 states under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20 years, but less than 30 years of service computed under section 3925 of this title may, upon his request, be retired. Section 3925 states for the purposes of determining whether an enlisted member of the Army may be retired under section 3914 his or her years of service are computed by adding all active service in the armed forces. 30. Army Regulation 135-180 (Qualifying Service for retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components (RC) Soldiers. Chapter 2 provides eligibility criteria and states, in pertinent part, that in order to qualify for non-regular retirement, a member must have: * attained age 60 * completed a minimum of 20 years of qualifying service * paragraph 2-8 defines qualifying service and states, that an RC Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service 31. The applicant contends the medical conditions resulting in his failure to meet retention standards were incurred during a period of active duty (i.e., are duty related). When he was notified that one or more medical conditions disqualified him for retention in the USAR, the applicant was informed he could elect to undergo a NDR or duty- related PEB. He elected to undergo a duty-related PEB. The record reflects the applicant was afforded neither option. The Board should consider whether the failure to refer the applicant’s case to the DES to determine whether the conditions not meeting medical retention standards were duty related and for a determination of fitness represents error or injustice warranting relief, or whether the applicant was properly separated from the USAR based on medical disqualification – not due to own misconduct. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and the advisory opinion. The Board discussed the applicant’s medical conditions and noted that they were incurred while on active duty. The Board found that when given the opportunity to make an election after he was determined to be medically unqualified for retention he elected to undergo a duty-related Physical Evaluation Board (PEB). Base on the evidence in the records, his request was not acted upon. The Board determined that an injustice had occurred and he should have been referred into the Disability Evaluation System (DES) and evaluated by a duty- related PEB for a determination of fitness and whether any unfitting condition(s) are duty related. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 3. The Board found the additional relief sought by the applicant – that retirement pay be initiated effective 20 December 2011 – was not ripe for adjudication. The applicant has been referred for evaluation by a duty-related PEB and must exhaust the administrative remedies available to him through the DES prior to consideration by the ABCMR. Further, the issue may become moot depending the outcome of the DES process. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to the Office of The Surgeon General for review: a. If a review by the Office of The Surgeon General determines the evidence supports it, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any diagnoses identified as having not met retention standards prior to his discharge. The individual should be evaluated by a duty-related Physical Evaluation Board (PEB) for a determination of fitness and whether any unfitting condition(s) are duty related. b. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be separated or retired for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief without benefit of the review described above. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 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 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, 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. 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. 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. 4. Army Regulation 40-501 (Standards of Medical Fitness) 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. 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. Normally, Reservists who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 or discharged from the USAR per AR 135–175 (Separation of Officers) or Army Regulation 135–178 (Enlisted Administrative Separations). They will be transferred to the Retired Reserve only if eligible and if they apply for it. c. Reservists 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. Reservists with nonduty 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. d. Paragraph 9-12 states Reserve component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Reserve component Soldiers with nonduty related medical conditions, MEBs are not required and cases are not sent through the PEBLOs (Physical Evaluation Board Liaison Officers) at the military treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USARC Regional Support Command or the U.S. Army Human Resources Command Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. 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, 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. 7. Title 10 U.S. Code, section 3914 states under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20 years, but less than 30 years of service computed under section 3925 of this title may, upon his request, be retired. Section 3925 states for the purposes of determining whether an enlisted member of the Army may be retired under section 3914 his or her years of service are computed by adding all active service in the armed forces. 8. Army Regulation 135-180 (Qualifying Service for retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components (RC) Soldiers. Chapter 2 provides eligibility criteria and states, in pertinent part, that in order to qualify for non-regular retirement, a member must have: * attained age 60 * completed a minimum of 20 years of qualifying service * paragraph 2-8 defines qualifying service and states, that an RC Soldier must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service ABCMR Record of Proceedings (cont) AR20170009649 3 1