ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 April 2019 DOCKET NUMBER: AR20170010552 APPLICANT REQUESTS: reconsideration of his previous denial to change the reason for his discharge to medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * a letter request for reconsideration, 26 May 2017 * two addendums to his request, 24 August 2017 and 11 November 2017 * two letters to the Army Board for Correction of Military Records (ABCMR), 26 March 2018 and 5 April 2018 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150017225 on 4 April 2017. 2. The applicant states that in accordance with Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1 he was supposed to have been sent to a physical evaluation board (PEB) to determine if the pre-existing condition had been service-aggravated. 3. The applicant states that in accordance with Casey v. United States. 8 CI, Ct. 234.239 (CI. Ct. 1985) "federals courts hold that an administrative discharge is void if it ignores procedural rights or regulations, exceeds applicable statutory authority, or violates minimum concepts of basic fairness, relief for service members who have been wrongfully discharge is premised on the central principle of making the injured service member "whole"." 4. He was given a "3" in the PULHES (P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric) of his physical profile and Items 5a and 5j of the DA Form 3349 (Physical Profile) were marked "NO." He was supposed to be sent to a medical evaluation board (MEB) but the Army administratively separated him in 2011. AR 40-501 (Standards of Medical Fitness) states the numerical designator "3" indicates that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity. 5. In an addendum, 24 August 2017, to his request for reconsideration the applicant provides legal cites in support of his case. a. "[i]t is axiomatic that '[a]n agency must treat similar cases in a similar manner unless it can provide a legitimate reason for failing to do so." Kreiss III, 406 F.3d at 687 (quoting Indep. Petroleum Ass'n of Am. v.Babbitt, 92 F.3d 1248, 1258 (D.C. Cir. 1996). b. "[n]ormally, an agency must adhere to its precedents in adjudicating cases before it." Jicarilla Apache Nation v. U.S. Dept. of Interior, 613 F.3d 1112, 1120 (D.C. Cir. 2010) (quoting Consol. Edison Co. of N.Y., Inc. v. FERC, 315 F.3d 316, 323 (D.C. Cir. 2003)). c. A "fundamental norm of administrative procedure requires an agency to treat like cases alike," Westar Energy, Inc. v. Federal Energy Regulatory Com'n, 473 F.3d 1239, 1241 (D.C. Cir. 2007). d. An agency "must provide an adequate explanation to justify treating similarly situated parties differently." Burlington Northern and Santa Fe Ry. Co. v. Surface Transp. Bd., 403 F.3d 771, 776 (D.C. Cir. 2005). 6. The applicant states ABCMR Docket Number AR20150004658, 21 July 2015, provides legal precedent for his case. a. ABCMR Docket Number AR20150004658, 21 July 2015, pertained to the discharge of another individual under the provisions of AR 635-200, paragraph 5-17 for other designated physical or mental conditions. Discharges under this paragraph excluded conditions appropriate for separation processing under paragraph 5-11. The individual had over 27 years of service in the Army National Guard (ARNG). On 24 February 2003, the individual had been ordered to active duty in the ARNG in support of Operation Enduring Freedom and deployed to Kuwait. He was initially diagnosed with an adjustment disorder in May/June 2003 and later determined by medical officials to have been suffering with undiagnosed post-traumatic stress disorder (PTSD). 1) The Board determined his records should be corrected to show he was retired due a permanent medical disability based on his PTSD. 2) The applicant's case is different in that he was diagnosed with an adjustment disorder after only 12 days of active service and 17 days from his date of enlistment. The applicant was not diagnosed with PTSD by either the Army or the VA. He was diagnosed with PTSD by a private psychiatrist over 2 years after his discharge. 7. The applicant states that according to Wilhelmus v. Geren 09-662 2011 U.S. Dist. lexis 75020 July/13/2011, BCMRs must follow legal precedent. 8. The applicant states he did not have any mental diagnosis or a verified past mental problems history in any of his military enlistment records. The Entrance Physical Standards Board (EPSBD) finding of existing prior to service (EPTS) was based on nothing. The presumption of soundness condition, the presumption of service-incurrence and the presumption of service aggravation are still intact, because the ABCMR did not provide clear and unmistakable evidence that his condition existed prior to service and clear and unmistakable evidence that his condition was not aggravated by military service. Absence of such evidence the ABCMR has to conclude that his chronic adjustment disorder was incurred in military service. 9. The applicant states, "if the ABCMR determines the Department of Defense (DOD) policy/guidance change in 2013 (regarding chronic adjustment disorder) should be applied retroactively to the applicant's case, it must first be determined by the office of the Surgeon General (OTSG) whether the condition of adjustment disorder would have met the present medical retention standards found in AR 40-501, and whether there would be any physical profile restrictions required for this condition." 10. The applicant states his adjustment disorder falls within the purview of 38 Code of Federal Regulations (CFR) 4.129 (Mental disorders due to traumatic stress). This section states when a mental disorder develops in service as a result of a highly stressful event is serious enough to separate the individual, the rating agency shall assign an evaluation of not less than 50 percent (%) and schedule an examination within the 6-month period after discharge. The applicant states he was exposed to machine gun fire and rifle fire, for days at U.S. Army shooting ranges in Fort Leonard Woods, MO just after his discharge from a mental hospital and under medication, in clear violation of the physical profile issued to him, that clearly said that he was not supposed to be in austere environments, among other things. 11. The applicant states ABCMR Docket Number AR20140016995, 12 January 2016, provides legal precedent for his case. The case pertained to an individual requesting reconsideration of her MEB diagnosis of adjustment disorder with mixed anxiety and depressed mood and disability compensation for that condition or the condition of depression. The USAPDA provided a legal opinion on this case. a. The individual, with over 10 years on active duty, was evaluated in September 2009 and diagnosed with an adjustment disorder with mixed anxiety and depressed mood. The individual met retention standards for this condition, considered psychiatrically fit for full duty and released without limitations. The condition did not constitute a disability in accordance with DOD Instruction (DODI) 1332.38 (Physical Disability Evaluation). b. On 10 April 2013, DOD changed DODI 1332.38 and directed that from that point forward a diagnosis of chronic adjustment disorder would be considered a disability that would be considered for a fitness determination. On 17 June 2013, Army Directive 2013-12 was published providing for the review and implementation of the new DOD guidance for all cases of Soldiers who were still in the military. Any cases that had been already adjudicated, but with the Soldier still remaining in the Army, needed to be reviewed and determined if they had a diagnosis of chronic adjustment disorder and whether it required any physical profile limitations. There were no provisions to apply the policy/guidance change retroactively. c. If the ABCMR determined the DOD policy/guidance change in 2013 should be applied retroactively to the individual's case, it must first be determined by the Office of the Surgeon General (OTSG) whether the condition of adjustment disorder would have met the present medical retention standards found in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and whether there would be any physical profile restrictions required for this condition in 2009. Upon a military medical finding that she would not have met the present medical retention standards, and that physical profile restrictions should have been imposed in 2009, it could be considered that the applicant was unfit for such a condition in 2009 and rated in accordance with the VA Schedule for Rating Disabilities based on any new OTSG opinions relating to her industrial impairment in 2009. d. The Board denied the individuals request for increase of disability and medical retirement based on an adjustment disorder. e. The applicant's case is different in that he was diagnosed with an adjustment disorder after only 12 days of active service and 17 days from his date of enlistment. The applicant was not diagnosed with PTSD by either the Army or the VA. He was diagnosed with PTSD by a private psychiatrist over 2 years after his discharge. In 2013, DOD and subsequently the Army changed policy and determined that chronic adjustment disorder could potentially be a compensable physical disability. This new standard was applied to Soldiers currently in the Physical Disability Evaluation System (PDES) process and on active duty. As the applicant was discharged in 2011, this policy change is not applicable to him. 12. The applicant previously served 14 days in the U.S. Air Force from 18-26 April 2004. He was issued an uncharacterized discharge for entry level performance and conduct. 13. On 28 September 2010, the applicant completed a Medical Prescreen of Medical History Report. In Item 2a(16) as to whether he had seen a psychiatrist, psychologist, social worker, counselor or other professional for any reason the applicant checked "NO." 14. On 13 October 2010, the applicant completed a Supplemental Health Screening Questionnaire on which he did not indicate any mental health conditions. 15. On 3 October 2011, the applicant enlisted in the Puerto Rico Army National Guard (PRARNG). 16. On 20 October 2011, the applicant was ordered to active duty to report on 25 October 2011, for basic training at Fort Leonard Wood, MO. 17. On 4 November 2011, the applicant was seen in the Mental Health Clinic, General Leonard Wood Army Community Hospital (ACH) after being seen in the emergency room the previous night due to his experiencing suicidal ideations. He was placed on unit watch. His current suicide risk was determined to be moderate. 18. On 5 November 2011, the applicant was seen in the Psychology Clinic, General Leonard Wood ACH with a complaint of "weird thoughts." He was diagnosed with adjustment disorder with depressed mood and his suicide risk was determined to be moderate. 19. On 6 November 2011, a record of inpatient treatment from General Leonard Wood ACH staff psychiatrist diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood, suicidal ideation, dependent personality disorder and tobacco use disorder. a. The staff psychiatrist provided the following describing the applicant: * Axis 1 - Adjustment disorder not otherwise specified * Axis 2 - deferred * Axis 3 - mild back pain * Axis4 - Limited social supports. Occupational difficulties and financial problems. * Axis 5 - Current GAF = 45 b. Plan: 1) Clarify diagnosis. Applicant appeared dysphoric and was certainly endorsing suicidal ideation, but did not describe other depressive symptoms. Discussed obtaining an interpreter to re-interview the applicant to insure that English being his 2nd language is not interfering with his ability to give a more detailed history. 2) Suicide risk. If the applicant were an outpatient, suicide risk would be moderate to severe. In a supportive environment he was able to contract for safety. He was currently on suicidal precautions. 3) He was to participate in group and milieu therapy. He will be seen daily in individual medical psychotherapy. 20. To diagnose and describe a patient using Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) (DSM-IV), a clinician rates the patient on five dimensions or axes. a. Axis 1 describes clinical disorders and "other conditions which may be a focus of clinical attention." These are typically problems that require immediate attention from a clinician. b. Axis 2 focuses on personality disorders and contains a rating scale for mental retardation. These problems may not require immediate care, but they can complicate treatment and should be taken into account by any clinician who treats a patient. c. Axis 3 labels any general medical conditions. These are important even when a problem seems to be mental or behavioral, because sometimes psychological problems are the byproduct of an illness such as diabetes or heart disease. d. Axis 4 specifies "psychosocial and environmental problems" such as poverty, dysfunctional families, and other factors in the patient's environment that might have some impact on the person's ability to function. e. Axis 5 is labeled the "Global Assessment of Functioning Scale." It is an overall rating of a person's ability to cope with normal life. The rating goes from low scores such as 10 ("Persistent danger of severely hurting self or others") to 100 ("Superior functioning in a wide range of activities"). 21. On 10 November 2011, the applicant's discharge diagnosis from General Leonard Wood ACH was adjustment disorder with mixed mood. 22. On 10 November 2011, the applicant was issued a temporary profile, to expire on 8 February 2012, for adjustment disorder with mixed anxious and depressed mood. a. He was assigned a numerical designator "3" under S - psychiatric. b. The profile did not indicate whether he met retention standards. c. Under functional activity the applicant could not carry and fire his assigned weapon (Item 5a) and he could not live in an austere environment without worsening his medical condition (Item 5j). He required access to a fixed medical treatment facility within 30 minutes. He was able to perform all aspects of the Army Physical Fitness Test. d. He was recommended for administrative separation via chapter 5-11 (EPTS). 23. On 15 November 2011, an Entrance Physical Standards Board (EPSBD) found that the applicant was medically unfit for appointment or enlistment in accordance with current medical fitness standards and in the opinion of the evaluating physicians the condition(s) EPTS. a. The applicant had an apparent adjustment disorder in the context of separation from his primary support and the stress of basic training. He was without acute complaint at the time of his discharge (from General Leonard Wood ACH). He endorsed resolution of depressive symptoms and compulsive homicidal ideation. He endorsed feeling safe on the ward and was appreciative of "supportiveness and professionalism" of ward staff. He endorses eager anticipation of his discharge. b. The applicant was alert and oriented x4 and in no acute distress. He had appropriate behavior and maintained good eye contact. His motor activity was neutral and his speech was within normal limits. His mood was "very good" and his affect was euthymic and congruent. His thought process was linear, logical and goal directed. His thought content was not manic/psychotic. His judgment was grossly intact and his insight was fair. c. The applicant had a history of anxiety and depressive symptoms, EPTS, and recent adjustment disorder with anxious and depressed mood who was now demonstrating stability on the inpatient ward without psychopharmacologic intervention. d. He was diagnosed: * Axis 1 - Adjustment disorder with mixed mood. * Axis 2 - Dependent traits * Axis 3 - Mild lower back pain. * Axis 4 - Separation from primary support. Occupational stress. * Axis 5 - GAF: 55 e. The EPSBD stated the applicant was clearly not eligible for training. The applicant had mental health conditions that EPTS. If detected at the time of enlistment, these would have prevented enlistment in the military. f. The EPSBD did not state whether the applicant met retention standards in accordance with AR 40-501. g. The EPSBD recommended the applicant be immediately removed from all training and physical training. He should not have access to weapons or sensitive information. The EPSBD recommended the applicant be expeditiously separated from active duty in accordance with AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 5-11 and AR 40-501, chapter 2-27. 1) Paragraph 5-11 of AR 635-200 provided for the separation of individuals identified within the first 6 months of active service as not meeting procurement standards. 2) Paragraph 2-27e of AR 40-501 stated current or history of adjustment disorders within the previous 3 months did not meet procurement standards. 24. On 28 November 2011, the applicant acknowledged he was informed of the findings of the EPSBD and advised that legal counsel from an Army attorney was available to him or he could consult a civilian attorney at his own expense. He was further advised that he could request discharge from the Army without delay or retention on active duty. The applicant concurred with the proceedings and requested to be discharged from the Army without delay. 25. On 5 December 2011, the applicant was issued an uncharacterized discharge by reason of failing to meet procurement standards. He completed 2 months and 3 days in the PRARNG which included 1 month and 11 days of active service. 26. On 18 June 2015, the applicant received a Compensation and Pension Examination (C&P). The applicant was diagnosed with PTSD by Dr. O, a private psychiatrist in May 2014 and with an anxiety disorder with claustrophobia in the disability benefits questionnaire for mental disorder that was conducted on 13 December 2014 by Dr. P. 27. In a letter, 18 April 2016, the Department of Veterans Affairs (VA) assigned the applicant a 30% disability rating for chronic adjustment disorder with mixed anxiety and depressed mood previously rated as anxiety disorder with claustrophobia effective 19 February 2013 and 70% effective 12 January 2016. 28. In a letter, 26 March 2018, the applicant states he was discharged via the EPSBD Proceedings due to a diagnosis of adjustment disorder. The Army discharged him via a board, that according to AR 40-400 (Medical Services, Patient Administration) an individual must be within retention standards for processing via the EPSBD. a. AR 40-400, paragraph 7-1 states EPSBD proceedings apply only to those enlisted personnel who within the initial 180 days of active duty or are found to have a medical condition/physical impairment which, had it been identified, would have precluded their current induction or enlistment however, their medical condition/impairment is within retention standards. b. The applicant cites AR 40-501, paragraph 3-41e stating conditions and defect not mention elsewhere in this chapter are causes for referral to an MEB. However, paragraph 3-36 stated situational maladjustments due to acute or chronic situational stress did not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty. c. The applicant cited ABCMR Docket AR 20150004947, 4 August 2015 as a precedent for his case. The case pertains to an individual requesting a change of diagnosis on his PEB from adjustment disorder with anxiety and depressed mood to PTSD. 1) The individual, with 13 years of active service (including 4 years in the U.S. Navy) and deployed to Iraq twice, once for 15 months and once for 11 months, was diagnosed with an adjustment disorder in June 2008 and with an adjustment disorder with anxiety and depressed mood in May 2010. The VA diagnosed him with depression, not otherwise specified (NOS). His MEB showed a diagnosis of adjustment disorder with anxiety and depressed mood. The individual's PEB stated, in accordance with DODI 1332.38 (Physical Disability Evaluation), the MEB diagnosis of adjustment disorder with anxiety and depressed mood was a condition not constituting a disability. The PEB recommended he receive a 10% disability rating for his condition of degenerative arthritis of the lumbar spine. He was discharged on 28 November 2011 by reason of a disability with entitlement to severance pay. The USAPDA provided a legal opinion on this case recommending disapproval of the applicant's request that his MEB diagnosis of adjustment disorder with anxiety and depressed mood be reconsidered. 2) On 10 April 2013, DOD changed DODI 1332.38 and directed that from that point forward a diagnosis of chronic adjustment disorder would be considered a disability that would be considered for a fitness determination. On 17 June 2013, Army Directive 2013-12 was published providing for the review and implementation of the new DOD guidance for all cases of Soldiers who were still in the military. Any cases that had been already adjudicated, but with the Soldier still remaining in the Army, needed to be reviewed and determined if they had a diagnosis of chronic adjustment disorder and whether it required any physical profile limitations. There were no provisions to apply the policy/guidance change retroactively. 3) The advisory official further stated that if the ABCMR determines that the DOD's policy/guidance change in 2013 should be applied retroactively to the individual's case, it should be reviewed and determined by The Office of the Surgeon General (OTSG). The OTSG would medically evaluate his condition of adjustment disorder and then determine if it would have met the present medical retention standards found in Chapter 3, AR 40-501 and whether there would be any profile restrictions required for this condition in 2011. Upon a military medical finding that he would not have met the present medical retention standards, and that profile restrictions should have been imposed in 2011, it could be considered that the individual was unfit for such a condition in 2011 and rated at the VA provided 50% rating for that condition. It is not germane to the review of this case that the VA changed the applicant's diagnosis to PTSD in 2012. 4) The Board denied the individuals request to change his diagnosis from adjustment disorder with anxiety and depressed mood to PTSD. 5) The applicant's case is different in that he was diagnosed with an adjustment disorder after only 12 days of active service and 17 days from his date of enlistment. The applicant was not diagnosed with PTSD by either the Army or the VA. He was diagnosed with PTSD by a private psychiatrist over 2 years after his discharge. In 2013, DOD and subsequently the Army changed policy and determined that chronic adjustment disorder could potentially be a compensable physical disability. This new standard was applied to Soldiers currently in the Physical Disability Evaluation System (PDES) process and on active duty. As the applicant was discharged in 2011, this policy change is not applicable to him. d. He requests once the ABCMR grants his medical retirement his medical condition be declared as combat-related based on the performance of his duty under conditions simulating war. He was exposed to rifle and machine gun fire at Army shooting ranges during basic training. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board found that based upon the extremely short term of military service, the characterization of service received by the applicant at the time of discharge was warranted. The Board also found that the findings and recommendations of the EPSBD were supported by medical documentary evidence and that the actions by the command, based upon those findings and recommendations of the EPSBD, were appropriate. For those reasons, 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. 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. AR 40-400, paragraph 7-12 (Expeditious discharge) states Soldiers who are identified within the first 6 months as not meeting the medical procurement standards under AR 40-501, chapter 2, may be separated under AR 635-200. The Soldier is not referred to the PEB. Soldiers who have a condition listed in AR 40-501, chapter 3, and the condition is deemed pre-existing and nonservice aggravated may be separated under AR 635-40 without evaluation by the PEB if the Soldier requests waiver of the PEB evaluation. a. Enlisted Soldiers who do not meet AR 40-501, chapter 2 standards but do meet AR 40-501, chapter 3 standards are processed as follows: DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings) is used for recording EPSBD proceedings. The Soldier must be on their initial enlistment and the EPSBD condition identified within the first 180 days of enlistment. These proceedings apply only to those enlisted personnel who within the initial 180 days of active duty or are found to have a medical condition/physical impairment which, had it been identified, would have precluded their current induction or enlistment (AR 40-501) however, their medical condition/impairment is within retention standards (AR 40-501, chap 3). Additionally, the condition has not been permanently aggravated during any period in which the member was entitled to base pay. b. A member will be referred for EPSBD action when there is clinical evidence, written documentation, or patient admission in conjunction with a clinical history, that the medical condition, had it been identified, would have precluded the member’s induction or enlistment. This condition must be noted within the initial 180 days and recorded in an official military record (for example, medical/unit records). 2. AR 40-501, then in effect, provided information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. a. Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction) prescribed the medical conditions and physical defects that were causes for rejection for appointment, enlistment and induction into military service. Paragraph 2-27e stated current or history of adjustment disorders within the previous 3 months did not meet the standard. b. Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provided the various medical conditions and physical defects which may have rendered a Soldier unfit for further military service. Paragraph 3-36 (Adjustment disorders) stated that situational maladjustments due to acute or chronic situational stress did not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty. 3. Chapter 7 (Physical Profiling) of AR 40-501 provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. a. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. (1) Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. (2) Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity. (3) Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40. b. To make a profile serial more informative, two modifiers are used: "P" (permanent) and "T" (temporary). The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity. In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition. 4. AR 635-40, then in effect, established the Army Physical Disability Evaluation System (PDES) and provided for the disposition of a Soldier found unfit because of physical disability according to applicable law and regulations. The fact that a Soldier may later fall below initial entry physical standards does not, in itself, authorize separation or retirement. a. Paragraph 3-1e (Prior-service disabilities) stated Prior-service medical conditions were to be considered according to the following standards and limitations. (1) Despite any other provisions of this regulation, after a Soldier was enlisted, inducted, and appointed or commissioned, the Soldier would not be declared physically unfit for military service because of disabilities known to exist at the time of the Soldier’s acceptance for military service that have remained essentially the same in degree since acceptance, and have not interfered with the Soldier’s performance of effective military service. (2) Notwithstanding the above, when a Soldier entered the military with a waiver for a medical condition or physical defect, and the condition represented a decided medical risk which would probably prejudice the best interests of the Government were the Soldier to remain in military service, separation without benefits may be appropriate, if initiated within 6 months of initial entry on active duty. Entry physical standards were used in separating individuals with preexisting medical conditions. Such cases were referred to a PEB to determine if the pre-existing condition was service-aggravated. 5. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), then in effect, provided the basic authority for the separation of enlisted personnel. Paragraph 5-11 specifically provided that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entrance on active duty or active duty for training or initial entry training were separated. Such conditions must have been discovered during the first 6 months of active duty and resulted in an EPSBD proceeding. 6. A medical proceeding, regardless of the date completed, must establish that: * a medical condition was identified by an appropriate medical authority within 6 months of the Soldier's initial entrance on active duty * the condition would have permanently or temporarily disqualified the Soldier for entry into military service had it been detected at that time * the medical condition did not disqualify the Soldier from retention in the service under the provisions of Army Regulation 40-501, chapter 3 7. 38 CFR section 4.129 states when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the 6-month period following the veteran’s discharge to determine whether a change in evaluation is warranted. ABCMR Record of Proceedings (cont) AR20170010552 0 11 1