ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20180001503 APPLICANT REQUESTS: in effect, reconsideration of his prior request for correction of his records to show honorable discharge or retirement due to physical disability in lieu of general discharge under honorable conditions due to unsatisfactory performance. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * table of contents * self-authored statement titled, “Head, Neck and Lower Back Injury May 1987” * self-authored statement titled, “Army Psychiatrist Major [(MAJ) G N ]” * self-authored statement titled, Company Commander Change” * over 20 pages of service medical records * 9 pages of service records * Riverside Hospital bill, dated 12 August 1987 * McDonald Army Hospital memorandum, dated 14 August 1987 * Cliffdale Clinic mental health examination, dated 20 August 1987 * Office Notes, Dr. F S , dated 28 August 1987 * National Personnel Records Center letter, dated 19 November 2001 * Summary of Neuropsychological Evaluation, source unknown, dated 5 February 2015 * Department of Veterans Affairs (VA) Progress Notes, dated 15 May 2015 * VA letter, dated 24 February 2017 * postmarked envelope from the Army Review Boards Agency (ARBA) * character reference list * letter of recommendation, R W , dated 29 May 2018 * excerpt from Texas Health Care Liability Act * article from The National Coalition of Mental Health Professionals and Consumers, titled “A Psychiatrist’s Expert Report on the First HMO Malpractice Lawsuit” * USA Today Article, titled, “U.S. Sues Dallas County over Jail” * Dallas Observe Blog, “County Settles Suit with Inmate – for Close to a Million Bucks” * The Associated Press article titled, “Dallas Jail Settles Mistreatment Lawsuit” * Veterans Today, article titled, “Personality Disorder –Trashing our Army for Profit 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 AR2002079532 on 5 June 2003. 2. The applicant states: a. His discharge should be upgraded to honorable and changed to either medical discharge or medical retirement, whichever is most appropriate, as he was not able to do his job as an airborne Infantryman because he was injured with a head injury while training for airborne infantry operations at Fort Bragg, NC. b. His chain of command was negligent and abusive to him after his head injury and other complications from the accident which resulted in traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), depression, anxiety, headaches, nausea, dizziness, and physical problems with his neck and back. He is still suffering from these conditions that have now worsened, in addition to other problems with his heart, tachycardia, and high blood pressure. c. His father was also stationed at Fort Bragg, NC, in the rank of lieutenant colonel, at the time of the applicant’s accident wherein he received a head injury and poly- trauma TBI. His father knew the chain of command was acting inappropriately and not taking proper care of the applicant. The applicant hired an attorney, M W , suspecting foul play in the chain of command and the Office of the Inspector General (IG) also opened an investigation into First Sergeant (1SG) K and the chain of command at 3rd Battalion, 505th Parachute Infantry Regiment, 82nd Airborne Division. d. 1SG K was negligent, manipulating the situation in the unit and with the psychiatrist Major (MAJ) G N and also threatened the applicant with physical violence. The chain of command was negligent in waiting until the day after his head injury on 11 May 1987, to get him to the hospital. 1SG K denied the applicant’s request to go to the Troop Medical Clinic to receive an updated physical profile and instead sent him on a 15 mile road march, almost killing him from exhaustion on the side of the road in the training area. 1SG K and Specialist Four R treated him cruelly and abused him. e. TBI and the related mitigating circumstances are the reasons for his changes in behavior and inability to process information correctly, thereby leading to unintentional errors of judgement, conduct and conflict followed by PTSD, anxiety, and depression. He is a disabled veteran with a service-connected rating from the VA of 90 percent for TBI, which is on appeal from the original 1987 rating of 100 percent. f. In his self-authored statement, “Head, Neck and Lower Back Injury May 1987,” he details two TBIs he received while on active duty. The first transpired on 4 May 1987 while in his barracks room. A large, heavy, metal window was open and he was looking out speaking to a sergeant when the window fell down, hitting him hard on the top of his head. He was extremely hurt, but just shook it off. g. A few days later on 11 May 1987, he was involved in a hand-to-hand combat wrestling match with his platoon against another platoon, when two very large sergeants took him down and threw him out of the moon crater pit where the wrestling match took place. He was released high into the air, approximately 4 feet off the ground and landed on his back, hitting the back of his head and twisting his neck. He immediately felt nausea, dizziness, and in pain. Almost everyone in his chain of command saw him get hurt. Approximately 10 minutes later they played a game called speedball, which he was harassed for sitting out of. When the game ended, the proceeded to run the 2-3 miles back to the barracks. After arrival and in formation, he blacked out, after which he doesn’t remember much until he woke up at Womack Army Hospital with his father standing over him. He has no recollection of how he got there. g. He remained on physical profile for the rest of his time in the Army and was removed from airborne status. On the morning of 27 May 1987, he should have had his physical profile reevaluated, but 1SG K did not allow him to go to sick call and forced him to go on a road march instead, leaving him for dead on the side of the road in the woods of Fort Bragg, NC, dehydrated and vomiting, possibly overdosing on Parafon Forte, a strong pain medication and muscle relaxer. Surviving only on instinct and his last bit of inner strength, while being abused and denied medical attention, after about 13 miles they put him on a truck because he could no longer take it. The negligence of his chain of command could have resulted in his death and the cover up that followed prompted an investigation of the unit by the IG. h. Between 20-28 August 1987, he saw a civilian neurologist and psychologist for independent testing and evaluations. The TBI was at the time called post-concussion syndrome and was diagnosed as well as a diagnosis of tachycardia, generalized anxiety disorder, PTSD, and dysthymic disorder, all of which were service-connected. He serve his country as a patriot, with dignity and honor! i. In his self-authored statement, “Army Psychiatrist [MAJ G N ]”, he details his experiences with MAJ G N , when he was sent to be mentally evaluated by him on or about 6 June 1987. He claims have been asked very odd questions about his religious beliefs in relation to performing his duties as an Infantryman, which he responded to defensively as he felt MAJ N was trying to suggest he was a conscientious objector and hyper religious, which he was not. MAJ N asked his father to come to a counseling session later that week without his knowledge or permission, during which time MAJ N asked his father to remove his uniform, which he refused to do and proceeded to chew him out. Both the applicant and his father proceeded to tell him he was full of crap about having a personality disorder and for passing judgment on his life before joining the Army. His civilian diagnoses did not agree with that of MAJ N . Furthermore, the credibility of MAJ N is put into question by his post-service work in 1998 involving the company he worked for being sued for negligence leading to a patient committing suicide and later his negligence was again found to have contributed to the suicidal deaths of three prisoners. He has provided numerous documents detailing the negligence of MAJ N with other patients post-service. He feels the evaluation by MAJ N let to all kinds of false narratives and manipulation in his case. j. In his self-authored statement, “Company Commander Change,” he states he had only been at his unit for 3 weeks prior to his TBI accident on 11 May 1987. His company commander, Captain (CPT) C , was on leave for most of his first 3 weeks at the unit, last signed a document in his military file on 1 July 1987, and CPT B took over as the new company commander sometime after the first week of July 1987, and in the interim, 1SG K was running the show, as acting commander, First Lieutenant W was a newly commissioned officer fresh out of college. In the ensuing chaos, the chain of command conveniently lost track of his whereabouts at this time, having no clue where he was when he was only where he could legally be or where they sent him (the hospital, battalion aid station, the chapel, barber shop, post exchange, mess hall, or guard duty), not absent without leave (AWOL). His commander sent his mother a letter stating he was AWOL since 8 July 1987, but the fact that he signed a document in his records on 9 July 1987, shows he could not have been AWOL on that date. Army records show he was not AWOL until 16 July 1987. He then states, he was AWOL from 16 or 17 May 1987 through 12 August 1987, when he was admitted to Riverside Hospital then transferred to the Fort Eustis Army Hospital on 12 or 13 August, then to the Fort Eustis stockade on 14 August 1987, and finally Womack Army Hospital on 14 August 1987. k. While awaiting his discharge for unsatisfactory performance, 1SG K assaulted him by putting his hands on him and threatening violence. Everything was a total set-up, working the system to accomplish CPT B , 1SG K , and MAJ N ’s goal to fabricate, manipulate the system, and ultimately kick him out of the Army one way or another and hurt both the applicant and his father. There was a certain amount of animosity about the fact that he grew up with his family in Fayetteville, NC, where his father was stationed at Fort Bragg, NC, by that time in the rank of colonel. All of this was orchestrated to cover up the fact that they were negligent in not providing him the necessary medical care he required. It is clear he suffered from TBI at the time of his discharge and he still suffers the residual effects, both physically and mentally. 3. The applicant enlisted in the Regular Amy on 28 October 1986. 4. He provided a partially illegible DD Form 689 (Individual Sick Slip), dated 12 May 1987, which shows he was injured and placed on 24 hour restriction to quarters. 5. He provided a DA Form 5181-R (Screening Note of Acute Medical Care), dated 15 May 1987, which shows he sustained a head injury (concussion and post- concussion syndrome) 4 days prior. He was feeling better, was alert, had good balance and medicine was helping him sleep. He was restricted to quarters that day, was to rest over the weekend and was ton continue taking the prescribed muscle relaxer Parafon Forte. 6. He accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 29 May 1987 for disobeying a lawful order from a noncommissioned officer to report to charge of quarters daily at 0800 during the period 22 May 1987 through 25 May 1987. 7. Multiple DA Forms 4187 (Personnel Action), show the following duty status changes pertaining to the applicant: * from present for duty (PDY) to AWOL on 26 May 1987 * from AWOL to PDY on 27 May 1987 8. He provided another DA Form 5181-R, dated 4 June 1987, which shows he went to the clinic for a follow up appointment to reevaluate his concussion. It shows he was feeling better on the day of the appointment, was more alert and had better muscle control. He was deemed improved, but was to continue with his current physical profile. 9. Numerous additional DA Forms 4187 show the following further duty status changes pertaining to the applicant: * from PDY to AWOL on 8 July 1987 * from AWOL to PDY on 9 July 1987 * from PDY to AWOL on 17 July 1987 * from AWOL to confined by military authority (CMA) on 13 August 1987, when the applicant turned himself in at AWOL apprehension at Fort Sam Houston, TX * from CMA to PDY on 14 August 1987 10. The applicant provided an undated letter from his company commander, CPT B , addressed to his mother, stating he had been AWOL since 8 July 1987 and his absence could result in trial by court-martial. 11. A DA From 3822-R (Report of Mental Status Evaluation), dated 26 June 1987, and signed by G N shows the applicant was evaluated on the date of the form and found to be labile in mood, loosely connected in thinking process, with abnormal thought content. He was diagnosed with mixed personality traits manifested with features of immaturity, poor impulse control, history of injuring self and others during fights, hyper- religious, trouble with authority figures, and resolving post head trauma concussion syndrome (but probably aggravating the above). It was recommended he transfer to a noncombatant job or receive an administrative separation from the service if deemed appropriate by his chain of command. His two head injuries at the onset of his current problems must be taken in light with his previous military performance. 12. A second DA Form 3822-R, dated 1 July 1987, found his thinking process clear, thought content normal, and did not assess his mood or affect. He was deemed to have the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 13. He provided a DA Form 2627-1 (Summarized Record of Article 15, UCMJ) which shows the imposition of NJP under Article 15 of the UCMJ for failure to report on 7 and 8 July 1987 was considered, but the applicant elected time to decide whether to appeal on 9 July 1987. 14. He provided a bill from Riverside Hospital, which shows he was admitted to the trauma center-routine on 12 August 1987 for a bill amounting to $19.00. 15. A McDonald Army Hospital memorandum, dated 14 August 1987, states the applicant was hospitalized on 13 August 1987, at 0430, and discharged on 13 August 1987, at 1051 for a total of 1 day of hospitalization. 16. A Cliffdale Clinic evaluation, dated 20 August 1987, shows an Army psychiatrist recommended a medical discharge for personality disorder and another opinion is needed for supporting paperwork, thus the exam. a. The applicant was pending discharge for unsatisfactory performance at the time of the evaluation. The applicant went AWOL on 15 July 1985 and was placed on the psychiatric unit when he was returned to Fort Bragg, NC. MAJ N evaluated him and felt he had a personality disorder. The applicant reported a religious conversion experience in 1985 and reports a change in his attitude toward people, but feels he respects authority. b. It was difficult to ascertain if a personality disorder was present but it appeared the applicant was under a great deal of stress. His behavior prior to his concussions appears to have been adequate and the possibility of a PTSD should be considered. His transfer to a different unit and thorough examination for a personality disorder were recommended. He was diagnosed with generalized anxiety disorder, dysthymic disorder (mood disorder), PTSD, acute, adjustment disorder with mixed disturbance of emotions and conduct. 17. On 25 August 1987, he was notified of his immediate commander’s recommendation for his administrative separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for unsatisfactory performance. His immediate commander recommended he receive a general discharge with a characterization of service as under honorable conditions. He was advised of his rights to consult with counsel, submit statements in his behalf, and obtain copies of documents sent to the separation authority. 18. He acknowledged receipt of the notification on 25 August 1987. He acknowledged he did not submit statements in his own behalf at the time, but would do so by 10 September 1987. His statement is not in his available records for review. He requested consulting counsel and acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued a general discharge, under honorable conditions. 19. The approval authority approved the request for discharge on 26 August 1987 and directed the issuance of a General Discharge Certificate. 20. Medical Office Notes, taken by Dr. F S , dated 28 August 1987, shows that after examination, the doctor concurred with a diagnosis of post-concussion syndrome and was not surprised he was unable to meet the rigorous demands of his Army training. He also noticed he had a persistent tachycardia and recommended cardiac evaluation. 21. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, on 11 September 1987, due to unsatisfactory performance. He completed 9 months and 16 days of net active service this period, with two periods of lost time from 8 July 1987 through 8 July 1987 and from 17 July 1987 through 13 August 1987. 22. VA Progress Notes, dated xx May 2015, show he has diagnoses of hypertension, TBI, chronic headaches, and chronic low back pain. 23. A VA letter, dated 2 February 2017, shows his combined evaluation effective 1 December 2016, was 90 percent. 24. The applicant provided a list of character references who were available by phone or email. He also provided an unsigned letter from Colonel (retired) R W , dated 29 May 2018, wherein he states he knew the applicant since he was twelve years old, when he and the applicant’s father were stationed together in the Panama Canal Zone. He can attest that the applicant has always been honest, loyal, and demonstrated the quality values you would want to see in every grown man. The applicant suffered several concussions while in the Army and was discharged from the Army, but he was never the same since his injuries in the Army. In 1987, very few doctors knew anything about PTSD or post-concussion syndrome. He recommends the upgrade of the applicant’s discharge to honorable. 25. On 30 April 2018, the Army Review Boards Agency (ARBA) medical advisor/psychologist provided an advisory opinion. The ARBA medical advisor/psychologist concluded there is insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. There were behavioral health conditions present at the time of his misconduct, but they did not mitigate his misconduct. The case for PTSD is not convincing and not well supported by his records and a causal role for a TBI is also not well documented. A copy of the complete medical advisory was provided to the Board for their review and consideration. 27. The applicant was provided a copy of the advisory opinion on 3 May 2018, and given an opportunity to submit comments. He responded on 31 May 2018, stating: a. He urges the ABCMR to reject the opinion provided by the ARBA medical advisory. TBI and PTSD were not well known at the time of his discharge, and Department of Defense policy changed in 2014 to mandate the consideration of PTSD when determining the characterization of discharges. His 1987 discharge does not equate to “unsatisfactory performance.” b. Prior to his TBI he was able to do his job as an Airborne Infantryman. He never had any physical problems, loved doing physical training, and took pride in everything he did. Before the military he was a well-adjusted military dependent who excelled at competitive sports. His pre-TBI adjustment to the military was perfect as he grew up in a military family. He was never a trouble maker or problem child, although after his injuries in the Army his behavior did become what some would call aggressive and angry. c. The medical advisor states at the time of his injuries he was in legal trouble, but this is absolutely inaccurate. The medical advisor also discusses “a casual role for a TBI,” but there is no such thing as a casual TBI; he has no clue about what a TBI is and the lifelong road for recovery. It is a very serious injury regardless of the length of the loss of consciousness. d. The medical advisor mischaracterized him and got it totally wrong by attacking his character, as the Army has done for 30 years when 1SG K set him up for an inequitable discharge. 28. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 contains policy and outlines procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 29. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 30. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 31. 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. 32. 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. 33. 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. BOARD DISCUSSION: After review of the application and all evidence, and in addition to the administrative notes below the signature, the Board determined that there is sufficient evidence to grant relief and amend ABCMR's decision in Docket Number AR AR2002079532 on 3, dated 5 June 2003. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement, and found evidence that the TBI was a mitigating factor for the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR AR2002079532 on 3, dated 5 June 2003. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214: a. item 24 (Characterization of Service): Honorable b. item 25 (Separation Authority): AR 635-200, Ch 5 c. item 26 (Separation Code): LFF d. item 27 (Reentry Code): 1 e. item 28 (Narrative Reason for Separation): Secretarial Authority __X________________________________ Chairman 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. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 2. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. 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, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/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. 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. 6. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 13 contains policy and outlines procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. //NOTHING FOLLOWS//