ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20170018869 APPLICANT REQUESTS: through Counsel, physical disability retirement in lieu of honorable discharge due to personality disorder. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * index * Counsel’s memorandum * applicant’s self-authored statement * applicant’s wife’s statement * DD Form 2808 (Report of Medical Examination), dated 30 March 2004 * DA Form 3340-R (Request for Reenlistment) * DD Form 2900 (Post-Deployment Health Reassessment (PDHRA)) * Discharge Summary Note * DD Form 3822 (Report of Mental Status Evaluation) * DA Form 4856 (Developmental Counseling Form) * debt avoidance counseling memorandum * DD Form 2808, dated 9 May 2007 * DD Form 2807-1 (Report of Medical History) * discharge packet * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Canyon Medical Group post-traumatic stress disorder (PTSD) exam * additional mental health medical records * Department of Veterans Affairs (VA) Rating Decision * National Personnel Records Center letter 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. Counsel states: a. The applicant served his country in the U.S. Army from March 2004 through July 2007 when he was administratively separated under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-13 because of personality disorder. This determination is not supported by the applicant’s medical records, which indicate he was suffering from PTSD and traumatic brain injury (TBI). Therefore, his separation was in direct violation of numerous Army and Department of Defense regulations and he should have been medically retired because of his physical disability of PTSD. b. The applicant is a 37 year old from Northridge, CA. As a young man in high school, he was social, light-hearted, and outgoing. Along with being both kind and genuine, he valued education and was a good student with focus. He always had the passion and drive to be in the military and chose the Army based on the GI Bill benefits with the ultimate goal of attending college and receiving a history degree so he could give back to the community as a history teacher. He enlisted in 2004, having worked with a recruiter for months in order to become ready for the military. At the time of his enlistment he was found to have a normal psychiatric profile and the medical examiner did not note any personality deviations. c. He was assigned with a new brigade combat team and after 1 1/2 years of preparation deployed with his unit in November 2005. His deployment in Iraq was fairly typical at first. There were long patrol days with his small reconnaissance company of around 80 Soldiers. The small size of the unit led to a tightknit group of Soldiers who grew to learn of each other’s family and friends back home. He fondly remembers the comradery and friendships he developed while deployed. However, soon after being deployed, he began to experience the destructive effects of armed conflict. His unit undertook over 300 combat missions and there were daily engagements, resulting in both physical and mental exhaustion. Furthermore, relations with the local nations were strained, making it difficult to gather sufficient intelligence. This required all Soldiers in the unit to be on especially heightened alert. d. As the end of his deployment neared, he experienced increasingly traumatic experiences. Fellow Soldiers were being killed with merely 1 or 2 months left before they were to return home. A raid on a mosque to pick up a well-known insurgent helping Hezbollah was an ambush and resulted in a firefight. The applicant experienced four explosions in a single day. In a more devastating turn of events, two of his best friends were killed within a 2-week period. The closeness and comradery shared by the unit made these losses even more acutely painful as they shared in the pain of the families of fallen Soldiers they had grown to know. e. Once he returned back home, he began to experience feelings of loneliness and depression. Despite this, his commander approved his request for reenlistment, marking the applicant was “fully qualified for [the] requested action. Although he was never a big drinker before joining the military, he began drinking heavily upon his return home. His wife (his girlfriend at the time) notice he had changed radically and took note of his heavy drinking. The applicant suffered a horrible flashback while on leave which resulted in his grabbing his girlfriend’s throat while at a party with friends. The applicant has no recollection of this incident and friends were shocked because he had never been a violent or angry person. f. After only 1 month of leave, he had to report back to duty and was sent to Fort Campbell, KY then 1 week later to Fort Bliss, TX. He had no family nearby and his unit was disbanded, with his fellow Soldiers being sent to other places. The constant lack of stability and support system exacerbated his feelings of loneliness and depression. He then began to experience issues at work, which was out of character for him and his sergeant took notice. His sergeant asked him if he were alright and recommended he seek help in dealing with his issues. Although there was a stigma attached to seeking help, the applicant was encouraged by his sergeant’s recommendation and voluntarily went to talk to someone about the feelings of depression, loneliness, and flashbacks he was experiencing. g. On 22 March 2007, he completed his second Post-Deployment Health Reassessment, on which the provider stated there was need for further evaluation and follow-up for the applicant’s symptoms of PTSD, anger/aggression, which were of major concern. The applicant was then admitted for inpatient treatment on 23 April 2007 where he was diagnosed with PTSD as his principal diagnosis and with mood disorder as a secondary diagnosis. h. When he was discharged 3 days later, on 26 April 2007, he underwent a Mental Status Evaluation where the same doctor annotated the applicant was already being considered for discharge because of personality disorder and for the good of the service. She diagnosed him with PTSD under Axis I and personality disorder not otherwise specified (NOS) under Axis II. She noted on the form the applicant had marked PTSD symptoms and depressed mood and an expeditious separation from Army was recommended for the good of the service as well as the applicant. She also noted the applicant was no longer deployable given the depth of the PTSD. i. On 1 May 2007, a debt avoidance counseling memorandum stating he was being considered for early separation from the Army and on 2 May 2007 he received a developmental counseling form that stated he was being processed for separation from the Army due to a personality disorder. He subsequently underwent a medical examination on 9 May 2007 where his psychiatric physical profile was marked as abnormal and rated “2”. That doctor noted the applicant had adjustment disorder, but did not mention PTSD. The applicant’s commanding officer informed him she was initiating action to separate him on 21 June 2007 and the action was approved the same day based on personality disorder. The applicant found this discharge incredibly difficult and felt as if it transpired very quickly without someone to properly explain the process to him. j. Approximately 2 months after his discharge, he was given a mental health exam at the Canyon Medical Group, where he was diagnosed with PTSD under Axis I and it was assessed that the war stressor caused the applicant to adapt to the war situation in order to stay alive, but these changes in his psychological function were now dysfunctional at home and in civilian life. The applicant continued to experience horrible flashbacks and went to the emergency room on 23 December 2007 with anxiety syndrome and uncontrollable crying with flashbacks. He again was admitted to the emergency room on 12 May 2012 suffering from flashbacks, afraid he would hurt himself or someone else. k. On 28 October 2013, the VA increased his service-connected PTSD disability rating from 30 percent to 50 percent, effective 26 July 2012, as well as granting service connection for TBI at 10 percent and migraine headaches secondary to the TBI. The applicant is careful to avoid crowds, fireworks and many other activities based on his PTSD and has had difficulty finding employment because his record states he was discharged for a personality disorder. He is therefore requesting his discharge show retirement because of physical disability due to PTSD and TBI, or alternately separation due to physical disability with separation pay, if a 30 percent disability rating is not granted. l. The evidence demonstrates the Army incorrectly discharged the applicant for a personality disorder rather than correctly discharging him for physical disability due to PTSD. The Army provides for separation of a Soldier due to a personality disorder only under the guidelines set forth in Army Regulation 635-200, paragraph 5-13, which provided an involved process by which a Soldier must be evaluated before he can be separated for a personality disorder. These guidelines were not followed in this case. Among the requirements set out by the regulation are: * the Army is required to show the observed behavior of a deeply ingrained maladaptive pattern of behavior that interferes with the Soldier’s ability to perform his/her duty is documented in counseling or personnel records * records must include history from sources such a supervisors, peers and other establishing the behavior is persistent, interferes with assignment and the Soldier has been afforded the opportunity to overcome the deficiencies * a diagnosis of personality disorder must be established by a psychiatrist or doctoral-level clinical psychologist and a medical review of the personality disorder diagnosis must consider whether PTSD, TBI, and/or other comorbid illness contributes to the diagnosis m. The applicant’s records do not demonstrate these requirements were adhered to. Only one doctor ever diagnosed him with personality disorder NOS, and all others diagnosed him with PTSD; therefore, the personality disorder supposedly suffered could not have been of a long duration if no prior or subsequent diagnosis of personality disorder exists. Additionally, there is no evidence in the record the applicant was given 4 an opportunity to overcome any observed deficiencies. Despite being diagnosed with PTSD, the Army did not consider whether PTSD could be a significant contributing factor to his symptoms when he was discharged for personality disorder. Army regulations make it clear that a discharge will not be based on personality disorder if PTSD or TBI or any other comorbid mental illnesses are significant factors to the diagnosis of personality disorder. n. An anxiety disorder that interferes with effective military performance is cause for a referral to a Medical Evaluation Board (MEB) and PTSD is considered and anxiety disorder. If the applicant’s conditions of PTSD and TBI interfered with his effective military performance and he did not meet medical retention standards, he should have been referred to a MEB for disposition through medical channels and a Physical Evaluation Board (PEB). o. A service member needs only a PEB determined disability rating of 30 percent in order to be retired from the Army and receive Army disability retirement benefits for the rest of his life. The VA granted the applicant a service-connected disability rating of 30 percent for PTSD and increased its evaluation to 50 percent effective July 2012, as well as granted service connection for TBI at 10 percent and migraines at 30 percent. p. The applicant served his country honorably in Operation Iraqi Freedom and has suffered debilitating mental anguish as a direct result of his experience in country. Had the Army followed its own regulations, it would have evaluated his PTSD through the prescribed formal process of an MEB/PEB. This process surely would have found him unfit for continued service and granted him the medical retirement he deserved. His medical records indicate the Army’s singular diagnosis of personality disorder is contrary to the overwhelming evidence that his multiple diagnoses of PTSD were appropriate. The Board had the authority and opportunity to correct the injustice of the applicant’s discharge and grant him a physical disability retirement. Should the Board not see fit to grant the applicant’s request, please provide a clear record of the Board’s findings and reasoning, so an immediate appeal to the Court of Federal Claims can be made. 3. The applicant states, in pertinent part: a. When he was young, he always wanted to join the U.S. Air Force or the U.S. Marine Corps, but joined the Army to take advantage of the GI Bill benefits. He wanted to attend college and major in history. Ultimately his goal was to be able to give back to the community by becoming a history teacher. He worked with a recruiter for several months in order to be ready to enlist in March 2004 and as part of his enlistment he underwent a psychiatric profile wherein he was found to be “normal.” b. He was placed in a brand new Brigade Combat Team and deployed in November 2005. Initially, his deployment in Iraq was typical, involving long patrol days with his small reconnaissance company of around 80 Soldiers. Given the small size of the unit, 5 many of them became very close and learned about each other’s family and friends back home. He has fond memories of all the friendships he developed. He soon encountered armed conflict as his unit of 80 Soldiers undertook over 300 combat missions. This meant daily engagements, which were both physically and mentally exhausting. Relations with the nationals were strained, which made it difficult to gather intelligence and caused Soldier in his unit to be on especially heightened alert. All of this added to the overall stress experienced by the unit. c. Toward the end of his deployment, he experienced increasingly traumatic events as his fellow Soldiers were being killed with merely 1 or 2 months left before they were set to return home. Particularly difficult experiences involved a raid on a mosque to pick up a well-known insurgent helping Hezbollah was an ambush and resulted in a firefight. Several men were shot and killed as they attempted to disengage fighting. He also experienced four explosions in a single day. d. One of the more devastating experiences for him was dealing with the deaths of two of his best friends within a 2-week period. His roommate, Corporal X , was killed and they were very close. They had known each other since Basic Combat Training and were in the same platoon since then. He performed multiple missions with him before he was killed. Their forward operating base was constantly being mortared and subjected to rocket attacks throughout his deployment, given that they were the most southern based American Force. Given the closeness and comradery shared by their small unit, these losses were incredibly painful, particularly because they shared in the pain of the families of the fallen Soldiers they had grown to know. Overall, he took part in 300 combat patrols, 8 company operations, 5 squadron operations, 4 air assault operations, and 3 riverine operations from 2005 to 2007. e. Once he returned back home, he began to experience feelings of loneliness and depression. He was never a big drinker before joining the military, but he began to drink more once he came home. While on leave, he suffered a horrible flashback in front of his friends. He has no recollection of this incident, but his friends were shocked by his actions. After just 1 month of leave, he had to return to duty, which was very difficult. He had no family nearby and his unit was disbanded. This led him to feel as though he lacked stability and a support system. f. He then began experiencing issues at work, which was very out of character of him. His sergeant asked if he was alright and recommended he seek help dealing with any issues he might be struggling with. Unfortunately, there is a stigma attached to seeking help; however, he was encouraged by his sergeant’s concern and his recommendation to seek help. He then decided voluntarily to speak with someone on base about the feelings of depression, loneliness, and flashbacks he had been experiencing since his return from deployment. g. The following weeks were a whirlwind. At the suggestion of his sergeant, he went in to talk to someone for his feelings of depression, loneliness, and flashbacks and the next thing he knew he was being separated from the Army for a personality disorder. He felt like no one took the time to counsel him on his options for treatment or his future with the Army. He has had a hard time dealing with his PTSD since his separation from the Army and has had a couple of setbacks, but his wife and family have provided him with much support and he has made progress. h. He currently cares for his daughter, but has previously looked for employment and believes the fact that his record displays he was discharged due to a personality disorder has severely impacted his chances at attaining employment. He has been working hard to address his PTSD and has been attending weekly therapy at the Chatsworth Veterans Center. He is disappointed that, despite the stigma, he took a chance to go and talk to someone about the issues he was facing and was ultimately penalized rather than helped. He believes this reinforces the stigma and discourages Soldiers from seeking the help they need. He hopes his record can be changed to reflect the true cause of his discharge from the Army was physical disability resultant from his PTSD. 4. The applicant enlisted in the Regular Army on 26 April 2004 and was awarded the military occupational specialty (MOS) 11B (Infantryman). His entrance medical examination shows he was fully qualified for enlistment with no noted medical conditions. 5. He deployed to Iraq from 28 November 2005 through 19 November 2006. While deployed, he requested reenlistment in the Regular Army on 27 March 2006 and was deemed by his commander to be fully qualified for the requested action. 6. On a Post Deployment Health Reassessment, dated 22 March 2007, the applicant indicated feeling his health was somewhat worse than prior to his deployment and indicated, increased irritability, problems sleeping, difficulty remembering, and feeling depressed or hopeless. 7. A Discharge Summary Note, dated 26 April 2007, shows: * the applicant was diagnosed with PTSD and mood disorder, secondary to PTSD * he reported having vivid dreams and reliving the experiences in Iraq, struggling with sleep and appetite problems and depression * his mood was stable and he denied being suicidal * he had no activity limitations 8. A Report of Mental Status Evaluation, dated 26 April 2007, shows: * a mental status evaluation was requested because he was being considered for discharge due to personality disorder or for the good of the service * it was the doctor’s opinion the applicant had the mental capacity to understand and participate in the proceedings and was mentally responsible * he was diagnosed with PTSD on Axis I and personality disorder on Axis II, NOS * the proposed treatment was command referral to Family Advocacy and Alcohol and Drug Services * a recommendation against the use of weapons/live ammunition and securing off- post weapons was made * he was found to meet the psychiatric criteria for separation under the provisions of Army Regulation 635-200, paragraph 5-13 * the remarks state he presented with marked PTSD symptoms and depressed mood * an expeditious separation from the Army was recommended for the good of the service and the Soldier as he was no longer deployable given the depth of his PTSD 9. On 2 May 2007, he was counseled by his assistance noncommissioned officer in charge to inform him that he was being processed for separation from the Army for a personality disorder. 10. He underwent a medical examination for the purpose of separation on 15 May 2007 and the medical examiner annotated the applicant was qualified for service and gave him a physical profile rating of “2” in the psychiatric category. 11. On 21 June 2007, his immediate commander notified him of her intent to initiate action to separate him under the provisions of Army Regulation 635-200, chapter 5-13, for personality disorder. The reason for the proposed separation was his diagnosis by a mental health psychiatrist as having a personality disorder and adjustment disorder with PTSD. She recommended his service be characterized as honorable. His battalion commander recommended approval of the action and the service characterization as honorable. 12. His DD Form 214 shows he was honorably discharged accordingly on 2 July 2007, due to personality disorder, after 3 years, 2 months, and 7 days of net active service. 13. On 27 August 2007, the applicant underwent a medical examination at the Canyon Medical Group, which confirmed his Axis I diagnosis of PTSD. 14. A VA Rating Decision, dated 28 October 2013, shows the applicant was granted the following service-connected disability ratings effective 26 July 2012: * migraine, 30 percent * TBI, 10 percent * tinnitus, 10 percent * PTSD, 50 percent * left shoulder strain, 10 percent * right ankle strain, 10 percent * left ankle strain, 10 percent * lumbar strain, 10 percent * right knee strain, 10 percent * left knee strain, 10 percent 15. The applicant’s wife provided a statement, dated 20 June 2017, wherein she reiterated much of what Counsel and the applicant stated. She stated, in pertinent part, a. She got to know her husband when they were both in high school and he was always social, lighthearted, and outgoing. In addition to being kind and genuine, she knew he valued education. b. When he returned from his deployment, he had changed radically. He began drinking heavily and suffered a horrible flashback in the winter of 2006, becoming extremely aggressive and grabbing her throat. He has no recollection of this incident and everyone was shocked to see him behave in this manner because he had never been a violent or angry person. c. He continued to have difficulties when he reported back to duty and even after his discharge. He had a terrible flashback in December 2007 and again in May 2012. He continues to have horrible nightmares, flashbacks, and generally suffer during normal, fun activities. For example, at Disneyland, the fireworks sent him into a panic and he hid under a table and then in a shop. She had to calm him down and reassure him he was safe. Although this behavior has gotten better over the years, the fact remains they have to avoid crowds, fireworks, and many activities based on his mental injuries. He has been seeking help, goes to therapy weekly, and is a wonderful father to their daughter. d. He has had difficulty getting a job because his record contains reference to his discharge for a personality disorder. His record should be changed to reflect physical disability, so they can all continue to move forward as a family. 16. On 20 December 2017, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion, which states: a. The applicant and Counsel submitted materials that make it clear the applicant did have an in-service diagnosis of PTSD. The records include a discharge note dated 26 April 2007 showing he was diagnosed with PTSD and mood disorder secondary to PTSD and combat experiences in Iraq were cited as the source of his trauma. b. In his separation mental status exam, the examining physician diagnosed PTSD and personality disorder, NOS. She did not verify that the met Army medical retention standards. She referred him to Family Advocacy and recommended against his use of weapons and live ammo, and also recommended securing any off-post weapons. She further opined he would not respond to any known efforts to rehabilitate him and should be expeditiously discharge for personality disorder; however, she also wrote he presented with marked PTSD symptoms and depressed mood. She stated he was no longer deployable given the depth of his PTSD, but no explanation is offered as to why the Soldier did not meet the criteria for referral to an MEB. Additionally his physical profile should have been S3 not S2, as indicated on his separation physical exam, given he had a weapons restriction. c. The applicant and Counsel have provided ample evidence of post-service PTSD and TBI as well. PTSD was diagnosed during a psychiatric hospitalization at an Army Medical Treatment Facility in April 2007 and endorsed as a correct diagnosis in this separation examination as well. The inclusion of the personality disorder diagnosis was not explained in the available records. d. It is unknown whether the applicant met or failed medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). His Separation Mental Status Exam could be construed as warranting an MEB referral, as it held that he had PTSD, a personality disorder and concluded he was not deployable. At this point, he had not met a medical retention decision point for PTSD; however, the examiner wrote as if she may have believed he remained unable to deploy because of PTSD. If so, the applicant should have had a MEB referral. e. The applicant’s medical conditions were not duly considered during separation processing, as his discharge with a diagnosis of PTSD raises questions about whether his separation was proper. A review of the available documentation found sufficient evidence of a medical disability or condition which would support a referral to the Office of the Surgeon General to determine if a referral to the Integrated Disability Evaluation System is warranted to determine if the applicant should have been medically separated or retired. A copy of the complete medical advisory was provided to the Board for their review and consideration. 17. On 2 February 2018, Counsel provided a rebuttal to the advisory opinion along with resubmitted a copy of the DA Form 3822-R, dated 26 April 2007, which was submitted with the original application. The rebuttal states: a. The advisory opinion states it is unknown whether the applicant failed medical retention standards in accordance with Army Regulation 40-501, warranting separation through medical channels, because the state of the records left it unclear whether the applicant did or did not meet medical retention standards. b. It is Counsel’s position that if the applicant had met medical retention standards, he would not have been recommended for separation or discharged in the first place. The records demonstrate the applicant’s condition failed medical retention standards. The doctor annotated on the DA Form 3822-R that the applicant’s problem would not respond to command efforts at rehabilitation (such as transfer, disciplinary action, or reclassification) nor to any treatment methods currently available in any military mental health facility. She also stated he presented with marked PTSD symptoms and depressed mood and was no longer deployable given the depth of his PTSD. 18. 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. 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. 19. 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. 20. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the medical advisory opinion. The Board considered the applicant’s statement, his spouse’s statement, his in-service medical records, the separation packet and his post-service VA medical/disability rating records. The Board reviewed the medical advisory opinion and agrees with the conclusions of the advising official regarding the conditions that existed at the time of his separation. Based upon the preponderance of evidence, the Board determined that the applicant should have been evaluated for his medical conditions to determine if his entry into the disability evaluation system was warranted. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 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 to determine if his documented conditions, as they existed at the time of separation, warranted disability evaluation system processing: a. If a review by the Office of The Surgeon General determines there is sufficient supporting evidence, 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. b. In the event that a formal PEB becomes necessary, the individual concerned may 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. If a determination is 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 separation pay and/or retired pay. 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. 8/19/2019 X CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 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 (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. 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. 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. 5. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 psychiatrist or doctoral-level clinical psychologist privileged to conduct mental health evaluations. A Soldier being separated under this section will be awarded a character of service of honorable, under honorable conditions, or an entry-level separation. 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.