ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20170010064 APPLICANT REQUESTS THROUGH COUNSEL: to be medically retired COUNSEL'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 18-page Memorandum * Department of Veterans Affairs (VA) * Service record documents * 2 letters of support * Medical records * Service documents 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. In an 18-page memorandum counsel states: a. The applicant honorably served his country in the United States Marine Corps (USMC) from 12 November 1998 to 11 November 2002 and in the United States Army from 6 August 2003 to 15 April 2004. The Army administratively separated the applicant under Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Paragraph 5-1, for a personality disorder. This determination was not supported by the applicant’s medical records (which indicated he was suffering from Post-Traumatic Stress Disorder (PTSD) and this determination was in direct violation of numerous Army and Department of Defense regulations. The applicant should have been processed by a medical evaluation board (MEB) and physical evaluation board (PEB) and found unfit for further military service due to PTSD that was more than 30 percent disabling - thereby entitling him to monthly military disability retirement and TRICARE. The applicant’s medical records show he should have been medically retired because of his PTSD. b. The applicant served as a Food Service Specialist in the Army and as a Low Altitude Air Defense Gunner in the USMC. He received several awards during his service. The applicant showed no symptoms of suffering from a personality disorder before enlisting in the USMC. There is no history of mental health issues in his family and according to an enlistment physical examination conducted for the USMC, the applicant had a "normal" psychiatric profile. The examiner did not note any personality deviations in the examination report. He was found to be qualified to enlist in the USMC. c. The applicant’s traumatic experiences while serving in the USMC were conceded by the Department of Veterans Affairs (VA). The applicant served in Afghanistan while in the USMC and was in "proximity to improvised explosive device (IED), suicide bombing, and other insurgent attacks". The applicant recalls "we got shot at by the Taliban, small arms, AK-47's, about 2 or 3 o'clock in the morning on Feb 15, 2002. We were seeing tracer rounds coming in at us, we were firing back.” On 16 October 2000, while in service in Yuma, Arizona, the applicant was involved in a motor vehicle accident when the "highback" he was in struck a civilian car. The applicant suffered a concussion, his gunnery sergeant was injured, and there were two fatalities. Medical records from 17 October 2000, described the applicant’s symptoms following the accident, "he was wearing a Kevlar helmet at the time and was sleeping when the impact occurred. He awoke as he was being violently thrown about the compartment ... He returned to duty today and at 1900 began to feel 'dizzy' ... He has also developed a low-grade, generalized HA, neck and back pain, and reports seeing some flashing lights." d. After witnessing two fatalities while serving in Arizona and being exposed to trauma while on tour in Afghanistan, the applicant began to experience problems. Between May 2000 and August 2002 the applicant was counseled on a number of deficiencies and violations. On 27 August 2002, the applicant was seen at Cherry Point Naval Hospital exhibiting agitation and "intermittent thoughts of harming others who have made him mad." "Over the past 4 months he has had thoughts of killing people who have made him angry by shooting them but has always been able to control these thoughts by talking to his girlfriend/roommate ... He feels [symptoms] related to his recent deployment to Afghanistan where he spent some time in foxholes." The Assessment/Plan from that visit ruled out Depression, PTSD, and HI, and further noted "Axis II-Personality D/O? antisocial trends." e. On 28 August 2002, the applicant underwent a psychiatric evaluation where he reported since returning from deployment a labile mood, thoughts of 'hurting and shooting people,' difficulty controlling angry behavior toward well-liked friends and girlfriend, decrease sleep/appetite, 'flashbacks' of combat, anergia, intrusive recollections, and feeling like fighting. Arguing more with girlfriend due to mood swings. He also reported lifelong difficulty trusting others, holding grudges, few friends, irritability, reckless behavior and intense anger. The applicant was diagnosed with a. occupational problem and adjustment disorder with mixed anxious/depressed mood on Axis I and with borderline traits on Axis II. f. The applicant’s behavior after deployment was in stark contrast to his behavior before deployment. Staff Sergeant (SSG) X, who served with the applicant from 1999- 2003 stated the applicant was "a different person" when he returned home from Afghanistan in the spring of 2002. SSG X stated the applicant was much more secluded and reserved and kept to himself most of the time. It was defiantly [sic] not the same." SSG X served with the applicant from February 1999 to June 2002 and noticed after returning home, the applicant began acting differently, "X___ never got into any trouble before, but everyone noticed that his attitude became aggressive, and he was belligerent with his fellow Marines and leaders ... his attitude was different." g. On 1 May 2003, the applicant underwent an enlistment physical examination for the Army. The examiner found that the applicant had a "normal" psychiatric profile and was qualified for service. On 27 November 2003, the applicant was seen at the 121st General Hospital "for depression he had been suffering from for a month due to family problems. No suicidal thoughts noted." The examiner noted the nature of the problem was an onset as a result of being in the line of duty. On 22 December 2003, the applicant’s commander stated he was notified the applicant had made suicidal threats. The on-call hospital psychiatrist deemed the applicant was not an immediate threat to himself or others. The results of the applicant’s psychiatric appointment was a recommendation for the applicant to be chaptered out of the Army under the provisions of Army Regulation 635-200, chapter 5-17 (other designated physical or mental conditions). h. On December 22, 2003, he received developmental counseling for his "violent tendencies," from SSG X. Before meeting with SSG X, Chaplain P told the applicant “he was going to do something stupid," and that he "can't deal with it." On 22 December 2003, the applicant underwent a Mental Status Evaluation and was diagnosed with Adjustment Disorder with Depressed Mood and Nicotine Dependence on Axis I. It was stated: "the disorders are so severe that the soldier's ability to function effectively in the military environment is significantly impaired. This problem is long standing and not treatable in the context of military service. It is the opinion of the examiner that this member has no potential to meet mobilization requirements, clearly has no potential for useful service under conditions of full mobilization, and that discharge from the Army under Chapter 5-17 would be in the best interest of both the individual and the Army. Although this individual is not actively suicidal or homicidal, the potential exists that this individual may deteriorate to a suicidal or homicidal state." i. On 29 December 2003, the applicant underwent a physical examination for his separation. His psychiatric profile was not evaluated and the examiner noted "none" in summary of defects and diagnoses. During the examination, the applicant reported he suffers from "back pains had them since prior to service" and that he has "talked to doctors about stress." On 1 February 2004, the applicant was notified that an action a. was being initiated to separate him for a Personality Disorder. On 29 March 2004, Colonel M approved the applicant’s separation due to a personality disorder, and waived rehabilitative requirements because "further duty of the soldier would be detrimental to the service member and unit readiness." j. Despite the conflicting medical reports from the applicant’s military service, the repeated determinations from the VA show the applicant suffered and continues to suffer from PTSD caused by his service. On 5 June 2009, at a mental health consultation with the VA, the applicant was evaluated and diagnosed with PTSD on Axis I and a deferred diagnosis on Axis II. The applicant had been "court-ordered for a PTSD evaluation" after being charged with assault and battery in December 2007 after a fight with his children’s mother. The applicant reported he recalled being in Afghanistan and getting shot at. He felt fearful and angry. He indicates he has vivid, persistent memories of this event. He tends to avoid being around others. He has outbursts of anger and difficulty concentrating. He jumps very easily if he hears a loud noise or sees a sudden movement. He used to sleep with a loaded gun. He feels bad about himself because he is unemployed and is incapable of providing for his children. He sleeps about 5 hours per night and his appetite is excessive. He has gained 20 pounds over the past 2 months. He has not considered suicide as an option since 2007 because of his children. j. On 18 April 2007, the applicant was hospitalized due to possible suicide risk after holding a knife to his chest after a fight with his girlfriend. The applicant was discharged on 20 April 2007, and the final diagnosis on Axis I was depressive disorder NOS, rule out dysthymia, rule out major depression, rule out PTSD and Axis II was deferred. On 11 December 2009, VA granted the applicant service connection for PTSD evaluated at 30 percent disabling, effective 12 May 2009, and for residuals of removal of Cloquet's Node evaluated at 0 percent, effective 26 August 2009. On 23 February 2010, VA granted the applicant service connection for lumbar strain evaluated at 10 percent effective 12 May 2009, and for residuals of skin tag removal, lumbar region, evaluated at 0 percent, and increased the applicant’s evaluation for residuals of removal of Cloquet's Node to 10 percent, while continuing his PTSD evaluation at 30 percent disabling. On 21 June 2011, VA increased the applicant’s PTSD evaluation to 70 percent effective 17 May 2014, continued his evaluation of lumbar strain at 10 percent disabling, and granted the applicant individual unemployability and Dependents' Educational Assistance, both effective 17 May 2010. As of 21 June 2011, the applicant's combined evaluation was 80 percent effective 17 May 2015. k. The applicant requests his records be corrected to change the Separation Authority, Separation Code, and Narrative Reason for Separation from an incorrect administrative separation under AR 635-200, Para 5-13: Personality Disorder, to reflect a medical retirement for being unfit because of physical disability due to PTSD with at least a 50 percent disability rating. If the ABCMR finds the applicant’s PTSD is not of a permanent nature, he requests to be retroactively placed on the temporary disability list (TDRL). If the ABCMR rejects the contention the applicant's PTSD should have been j. assigned at least a 30 percent disability rating, and instead finds that it merits less than a 30 percent rating, the applicant requests his discharge be changed to a medical separation. This would entitle him to a lump sum severance payment. l. The Army should not have administratively discharged the applicant for a personality disorder, but rather, due to his PTSD suffered during his service. The Army should have medically discharged him, placed him on the TDRL, or discharged him with entitlement to severance pay. The Army failed to properly evaluate the applicant's PTSD prior to separation. The Army erred by administratively separating the applicant for a personality disorder he did not have. All references to this type of separation should be removed from his Discharge Certificate. m. The Department of Defense (DOD) allows for administrative separations for conditions including dyslexia and other learning disorders, attention deficit hyperactivity disorder, and certain mental disorders including adjustment disorders, impulse control disorders, and personality disorders. Army Regulation 635-200, states that a personality disorder "is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the soldier's ability to perform duty." Separation for personality disorder was intended for soldiers with personality disorders that interfere with performance of duty. Such a separation is considered an involuntary action for the convenience of the government. It requires the personality disorder be "so severe that the soldier's ability to function effectively in the military environment is significantly impaired." Separation for personality disorder "may not be initiated ...until the soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records." Further, the diagnosis of personality disorder must have been established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials who is privileged to conduct mental health evaluations for the DOD components." n. There are no indications the applicant was ever diagnosed with a personality disorder. According to the Mental Status Evaluation from 22 December 2003, he was actually diagnosed with an adjustment disorder with mixed disturbance of emotion and conduct. This was noted in the notification memorandum he received on 1 February 2004, as well as in the applicant’s commander's recommendation. This is a clear failure to follow established procedures in separating a soldier for a personality disorder. Regulations require a diagnosis of personality disorder by a psychiatrist or doctoral-level clinical psychologist. Given that the applicant was never diagnosed with a personality disorder, and was in fact diagnosed with an adjustment disorder, his separation under Chapter 5-13 was clearly inappropriate. In addition, the Army failed to follow the established procedures required when administratively separating a soldier for personality disorder. In the notification memorandum given to the applicant, the commanding officer’s stated reason for initiating separation was due to a diagnosed Adjustment Disorder with Depressed Mood Nicotine Dependence. Inconsistent with j. required procedure, the applicant was not informed this was significantly impairing his ability to function in a military environment before he was administratively separated. o. Although the applicant received developmental counseling to discuss his "violent tendencies" there is nothing in his records to demonstrate he received any developmental counseling after he was notified of his commanding officer's intent to recommend his separation. The applicant was first notified of his commanding officer's intent to recommend separation on 1 February 2004. His commanding officer recommended separation on 15 March 2004, which was approved on 29 March 2004. The applicant was discharged on 15 April 2004. This short span of time hardly reflects "ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records." p. According to Army Regulation 40-501 (Standards of Medical Fitness), a soldier should be referred to an MEB if the soldier's "medical fitness for return to duty is questionable, problematical, or controversial." An anxiety disorder that interferes with effective military performance is cause for referral to an MEB/PEB. The applicant should have been referred to an MEB/PEB for his PTSD - a severe anxiety disorder - interfered with his military performance which caused Morrison to fall below medical retention standards. The applicant’s PTSD rendered him unfit to perform his military duties because he was riddled with anxiety and thoughts of harming others, which preoccupied his behavior and was in stark contrast to his conduct before he had PTSD. Although the applicant did not receive a PTSD diagnosis while in service, his various instances of misconduct are consistent with PTSD symptoms, and further, a post- discharge VA examination diagnosed the applicant with PTSD. The VA determined PTSD, and not a personality disorder effective the applicant’s performance of his military duties, thus triggering the need for an MEB. If he had properly been referred to an MEB, the MEB would have determined his PTSD caused him to fall below the Army's standards of medical fitness. His persistent symptoms, including thoughts of hurting others, difficulty controlling his anger, decreased sleep and appetite, flashbacks from combat, lack of energy, and intrusive recollections, that were arguably caused by PTSD. The applicant was denied both a MEB/PEB evaluation. q. The applicant served his country honorably in Operation Enduring Freedom and has suffered debilitating mental anguish as a direct result of his experience in country. Had the Army followed its own regulations and Department of Defense directives, it would have evaluated the applicant’s PTSD through the proscribed formal process of a MEB/PEB. This process surely would have found the applicant unfit for continued service, and granted him the medical retirement that he deserved. In any case, the applicant’s medical records indicate that the Army's diagnosis of "personality disorder" was contrary to the overwhelming evidence and that a diagnosis of PTSD was appropriate. Unfortunately, upon his return from his tour of duty in Afghanistan, the applicant was improperly discharged. This decision was contrary to the evidence available at the time, and in violation of Army Regulations and DOD Directives. These errors deprived the applicant of benefits to which he is rightfully entitled. This Board has j. the authority and opportunity to correct these injustices, and should do so now. The applicant requests early attention be paid to this case because he has long been denied proper benefits due to him as a result of his service related PTSD. Should this Board not see fit to grant the applicant the relief requested, he requests a clear record of the Board's finding and reasoning, so that an immediate appeal can be taken to the Court of Federal Claims. 3. On 22 December 2003, the applicant underwent a mental evaluation. He was diagnosed with an adjustment disorder with depressed nicotine dependence. It was noted. The applicant’s level of alertness, thought processes and thought content were within normal limits. His behavior was described as “Normal” and “Hostile”. His level of orientation was listed as “Partial”, his mood or affect was described as “Flat” and his memory was described as “Fair”. He was found to have the mental capacity to understand and participate in proceedings and was judged mentally responsible. The examining psychologist stated the following: “…the diagnostic impression is Adjustment Disorder with Depressed Mood and Nicotine Dependence. These represent psychiatric conditions within the meaning of DSM-IV-TR. Further, the disorders are so severe that the soldier’s ability to function effectively in the military environment is significantly impaired. This problem is long standing and not treatable in the context of military service. It is the opinion of the examiner that this member has no potential to meet mobilization requirements, clearly has no potential for useful service under conditions of full mobilization and that discharge from the Army under Chapter 5-17 would be in the best interests of both the individual and the Army…” 3. On 27 December 2003, the applicant was seen for depression he had been suffering from for 1 month due to family problems, there were no suicidal thoughts noted. 4. On a Report of Medical History dated 6 January 2004, the only medical issue the applicant disclosed was back pain, he stated the pain existed prior to service. He also indicated he had talked to doctors about stress. 5. On 1 February 2004, he was notified by his commander of his intention to initiate action to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 5-13, due to a personality disorder. The commander stated the reason for his action was the applicant had been diagnosed with Adjustment Disorder with Depressed Mood, Nicotine Dependence. He was advised of his right to consult with counsel and submit statements in his behalf. The applicant acknowledged receipt. 6. On 7 February 2004, he acknowledged being advised by consulting counsel of the basis for the contemplated action to separate him for personality disorder under the provisions of Army Regulation 635-200, paragraph 5-13. He did not submit statements in his own behalf. 3. 7. On 29 March 2004, an authorized official directed the applicant’s discharge in accordance with Army Regulation 635-200, paragraph 5-13, and the issuance of an Honorable Discharge Certificate. 8. On 15 April 2004, the applicant was discharged in accordance with the authorized official’s decision. His DD Form 214 shows he completed 8 months and 15 days of net active service this period. 9. The applicant provides two letters of support indicating the applicant’s attitude and demeanor changed after his deployment to Afghanistan. 10. On 17 September 2017, the Army Review Boards Agency (ARBA) psychologist provided an advisory opinion. The ARBA psychologist concluded the applicant’s military medical records do support a PTSD diagnosis at the time of discharge in accordance with the Secretary of Defense 2014 Liberal Guidance guidelines. The applicant’s medical records indicate that the applicant met medical retention standards in accordance with Army Regulation 40-501 and separation through military medical channels (i.e.-referral for MEB/PEB) was not indicated. The applicant’s Chapter 5-13 discharge for Personality Disorder is incorrect as the applicant has never been diagnosed with a Personality Disorder. A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. In response to the medical advisory, counsel submits the following statements: a. The Advisory Opinion states the applicant was diagnosed with an adjustment disorder in December 2003. However, the Advisory Opinion fails to acknowledge the applicant was first diagnosed with an adjustment disorder on 28 August 2002. He suffered from symptoms for over a year. An adjustment disorder is a temporary condition and symptoms must resolve within six months of the termination of the stressor, the adjustment disorder diagnosis was inappropriate. Even if the applicant had an adjustment disorder, he should have been allowed an appropriate amount of time in order to confirm the existence of an adjustment disorder. Adjustment disorder symptoms, by definition, do not exceed six months. In violation of Army regulations, the applicant was diagnosed with an adjustment disorder on 22 December 2003 and was separated from the Army less than four months later. b. If the applicant had been properly granted six months, he would not have been improperly classified as unfit for service because of an adjustment disorder. The applicant’s symptoms due to PTSD caused significant functional impairment, and he should have been referred for MEB/PEB. He suffered from prolonged symptoms as exhibited by medical records. Service members who fall below required medical standards are required to undergo an evaluation by an MEB and to be referred to a PEB. If a MEB determines a service member does not meet retention standards, the board will recommend referral of the PEB. A service member with an anxiety disorder (which was later diagnosed as PTSD) who falls below retention standards must be referred to a PEB. The applicant suffered from PTSD as a result of his service and fell below required medical and retention services, he should have been granted an MEB and a PEB referral. He was improperly denied both. The applicant’s undiagnosed PTSD impaired his ability to meet retention standards. The applicant’s record contains compelling evidence that his persistent symptoms interfered with effective performance of his military duties. Counsel reiterates his aforementioned contentions concerning the applicant’s PTSD. He reiterates his contentions outline in the 18-page to describe how the applicant meets the criterion for PTSD. c. Should this Board not see fit to grant the applicant the relief requested, he requests a clear record of the Board’s finding and reasoning, so that an immediate appeal can be taken to the Court of Federal Claims. 12. Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-13 states a service member may be separated for personality disorder not amounting to disability that interferes with assignment to or performance of duty when so diagnosed by a medical authority. 13. 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. 14. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory finding that he applicant met retention standards, the Board concluded that there was insufficient evidence to justify making a change to the narrative reason for separation. For that reason, the Board recommended denying the applicant’s request for relief. 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. 5/13/2019 X o CHAIRPERSON Signed by: I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-13 states a service member may be separated for personality disorder not amounting to disability that interferes with assignment to or performance of duty when so diagnosed by a medical authority. A Soldier being separated under this section will be awarded a character of service of honorable, under honorable conditions, or an entry-level separation. 3. 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 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. a. 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. 4. 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. 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.