IN THE CASE OF: BOARD DATE: 1 July 2021 DOCKET NUMBER: AR20180013631 APPLICANT REQUESTS: in effect, correction of his military records to show he was retired due to physical disability. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s Statement, dated 8 January 2018 * National Guard Bureau (NGB) Form 22 (NG-Report of Separation and Record of Service), ending 8 October 2017 * Department of Military Affairs, Virginia Army National Guard (VAARNG) letter, dated 11 May 2018 * Congressional House of Representatives letter, dated 17 May 2018 * Department of Veterans Affairs (VA) Rating Decision, dated 6 July 2018 FACTS: 1. The applicant states, in effect, that he should have been processed through a Medical Evaluation Board (MEB)/Physical Evaluation Board (PEB), and considered for a medical retirement. He contends he was discharged due to his VA disability rating without a medical Board or consideration for a medical retirement. 3. A review of the applicant’s available record shows that he served in the Regular Army from 26 February 2001 to 5 June 2001. His DD Form 214 (Certificate of Release or Discharge from Active Duty) show the reason for separation was his entry level performance and conduct. His service was determined to be uncharacterized. 4. He enlisted in the Tennessee ARNG (TNARNG) on 31 July 2003 and he was honorably discharged on 9 June 2004, by reason of medical unfitness for retention, in accordance with Memorandum NGB-ARP, Appendix A, paragraph 1-26j(1). 5. On 21 April 2008, the applicant applied to this Board for correction of his military records. He requested that his DD Form 214 be corrected to show he held the rank/pay grade of private first class (PFC)/E-3 at the time of his separation, and that he received a hardship discharge. 6. The Chief, Case Management Division, administrative closed the applicant’s case on 31 August 2009, after he failed to provide the requested medical documentation required to process his case. 7. The Joint Force Headquarters, TNARNG, published Orders 258-817, on 15 September 2009. These orders amended the authority for his separation to show: Memorandum NGB-ARP, Subject All States (log Number P98-0061) Enlisted Separations, dated 20 October 1998, Appendix A, paragraph 1-27o. 8. On 15 September 2015, his NGB Form 22 was corrected to show in: * Item 23 (Authority and Reason), the entry “MEMO NGB-ARP APPENDIX A PARA 1-27o * Item 26 (Reenlistment Eligibility), the entry “RE-1” 9. On 6 November 2009, he enlisted in the VAARNG. He held MOS 11B (infantryman). 10. He was ordered to active duty in support of Operation Enduring Freedom on 1 June 2011. He served in Iraq/Kuwait, from 30 July 2011 to 6 December 2011, before being released from active duty on 8 January 2012. 11. On 8 October 2017, he was honorably discharged from the VAARNG. His NGB Form 22 lists the authority and reason for discharge as “Medically unfit for retention” in accordance with National Guard Regulation (NGR) 600-200, chapter 8- 35l(8). 12. The applicant did not provide medical records showing a diagnosis or treatment for PTSD, or any behavioral health condition. His available record does not contain a LOD investigation for a medical condition or injury sustained while entitled to active duty pay. 13. The applicant provides his VA disability rating decision, dated 7 February 2018. This decision shows that upon appeal, the applicant’s erectile dysfunction was granted an earlier effective date, and his other specified trauma or stressor related disorder was increased to a 70-percent disability rating. 14. The applicant provided a personal statement (presumably to his member of congress), congressional correspondence, and a response to a congressional inquiry, pertaining to his discharge from the VAARNG. a. The applicant provides the following statement, dated 8 January 2018- (1) He was recently discharged, by reason of medical unfitness, from the VAARNG. His medical conditions were extensively evaluated by the VA medical system and the VA awarded him a 90% disability rating, and a 100% unemployability rating. His disabilities did not result from intentional misconduct or willful neglect, nor were they incurred during a period of unauthorized absence. His research and evaluation of applicable regulations show that his discharge was not handled in accordance with the regulatory guidance and he should have been considered for a medical retirement. (a) He states that he attended all of his medical examination in accordance with Army Regulation (AR) 40-501 (Medical Services-Standards of Medical Fitness). He believes his discharge was mishandled because he was told that his post-traumatic stress disorder (PTSD) was the only disability that the U.S. Army would recognize as service-connected. He was not given an opportunity to be processed through the Physical Disability Evaluation System (PDES). The VA has assigned his service- connected sleep apnea a 50% rating, and his service-connected anxiety a 70% rating. He has been diagnosed with PTSD, but it has not been ruled service-connected. (b) He contends that he provided his VA disability rating to his leadership, and his rating was used as the basis for his discharged. He was told he was not eligible for a PEB. (2) The applicant statement includes the following references - (a) AR 40-501 states commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per this regulation and provides procedures for Soldiers who refuse to report. Commanders who do not recommend retention will request the Soldier’s discharge. When medical condition was incurred in line of duty (LOD), the procedures of AR 600-8-4 (LOD Policy, Procedures, and Investigations) will apply. Discharge will not be ordered while the case is pending final disposition. This paragraph also includes those Soldiers who refuse or are ineligible to reclassify into a new military occupational specialty (MOS), Reentry code 3. (b) AR 40-501, paragraph 3-4. General Policy. Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from the service. Physicians are responsible for referring Soldiers with conditions listed below to a MEB. It is critical that MEBs are complete and reflect all of the Soldier’s medial problems and physical limitations. The PEB will make the determination of fitness or unfitness. The PEB, under the authority of the U.S. Army Physical Disability Agency, will consider the results of the MEB, as well as the requirements of the Soldier's MOS, in determining fitness. (c) AR 40-501, paragraph 3-33. Anxiety, somatoform, or dissociative disorders. The causes for referral to an MEB are as follows: (a) Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or (b) Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or (c) Persistence or recurrence of symptoms resulting in interference with effective military performance. (d) AR 40-501, paragraph 3-41(c). Sleep apnea. Obstructive sleep apnea or sleep –disordered breathing that causes daytime hypersomnolence, or snoring that interferes with the sleep of others, and that cannot be corrected with medical therapy, nasal continuous positive airway pressure (CPAP), surgery, or an oral appliance. The diagnosis must be based upon a nocturnal polysomnogram and the evaluation of a pulmonologist, neurologist, or a privileged provider with expertise in sleep medicine. (e) AR 600-8-4, paragraph 2-2(d), Disability Retirement and Severance Pay. For Soldiers who sustain permanent disabilities while on active duty to be eligible to receive certain retirement and severance pay benefits, they must meet requirements of the applicable statutes. One of these requirements is that 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. PEB determinations are made independently and are not controlled by LOD determinations. However, entitlement to disability compensation may depend on those facts that have been officially recorded and are on file within the Department of the Army (DA). This includes reports and investigations submitted in accordance with this regulation. (f) AR 600-8-4, paragraph 2-2(f), Benefits administered by the VA. In determining whether a Veteran or his or her survivors or family members are eligible for certain benefits, the VA makes its own determinations with respect to LOD. These determinations rest upon the evidence available. Usually this consists of those facts that have been officially recorded and are on file within DA, including reports and LOD investigations submitted in accordance with the provisions of this regulation. Statutes governing these benefits generally require that disabling injury or death be service- connected, which means that the disability was Incurred or aggravated in the LOD. The statutory criteria for making such determinations are in Title 38, U.S. Code, section 105. (g) AR 600-8-4, paragraph 2-3. Requirements for LOD. LOD investigations are conducted essentially to arrive at a determination of whether misconduct or negligence was involved in the disease, injury, or death and, if so, to what degree. Depending on the circumstances of the case, an LOD investigation may or may not be required to make this determination. The LOD determination is presumed to be "LOD YES" without an investigation. Investigations can be conducted informally by the chain of command where no misconduct or negligence is indicated, or formally where an investigating officer is appointed to conduct an investigation into suspected misconduct or negligence. A formal LOD investigation must be conducted in the following circumstances: (1) Injury, disease, death, or medical condition that occurs under strange or doubtful circumstances or is apparently due to misconduct or willful negligence. (2) Injury or death involving the abuse of alcohol or other drugs. (3) Self- inflicted injuries or possible suicide. (4) Injury or death incurred while absent without leave (AWOL) (5) Injury or death that occurs while an individual was enroute to final acceptance in the Army. (6) Death of a U.S. Army Reserve (USAR) or ARNG Soldier while participating in authorized training or duty. (7) Injury or death of a USAR or ARNG Soldier while traveling to or from authorized training or duty. (8) When a USAR or ARNG Soldier serving on an active duty tour of 30 days or less is disabled due to disease. (9) In connection with an appeal of an unfavorable determination of abuse of alcohol or other drugs. (10) When requested or directed for other cases. (h) AR 600-8-4, paragraph 4-11. Mental responsibility, emotional disorders, suicide, and suicide attempts. The Medical Treatment Facility (MTF) must identify, evaluate, and document mental and emotional disorders. A Soldier may not be held responsible for his or her acts and their foreseeable consequences if, as the result of mental defect, disease, or derangement the soldier was unable to comprehend the nature of such acts or to control his or her actions. Therefore, these disorders are considered "in LOD" unless they existed before entering the Service and were not aggravated by military service. Personality disorders by their nature are considered as existed prior to service (EPTS). LOD investigations of suicide or attempted suicide must determine whether the Soldier was mentally sound at the time of the incident. The question of sanity can only be resolved by inquiring into and obtaining evidence of the Soldier's social background, actions and moods immediately prior to the suicide or suicide attempt, troubles that might have motivated the incident, and examinations or counseling by specially experienced or trained persons. Personal notes or diaries of a deceased Soldier are valuable evidence. In all cases of suicide or suicide attempts, a mental health officer will review the evidence collected to determine the bio- psychosocial factors that contributed to the Soldier's desire to end his or her life. The mental health officer will render an opinion as to the probable causes of the self- destructive behavior and whether the Soldier was mentally sound at the time of the incident. If the Soldier is found mentally unsound, the mental health officer should determine whether the Soldier's mental condition was an EPTS condition aggravated by Service or was due to the soldier's own misconduct. Those conditions occurring during the first six months of AD may be considered as EPTS, depending on history. In cases of suicide or attempted suicide during AWOL, mental soundness at the inception of the absence must also be determined. An injury or disease intentionally self-inflicted or an ill effect that results from the attempt (including attempts by taking poison or drugs) when mental soundness existed at the time should be considered misconduct. (i) AR 635-40 (Disability Evaluation for Retention, Retirement, or Retention, Retirement, or Separation), paragraph 4-1, Scope of the Disability Evaluation System. Public Law 110-181 defines the term, PDES, in part, as a system or process of the Department of Defense (DOD) for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments and is comprised of MEBs, PEBs, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. A Soldier may not be discharged or released from active duty because of a disability until they have made a claim for compensation, pension, or hospitalization with the VA or have signed a statement that their right to make such a claim has been explained, or have refused to sign such a statement. The objectives of the DES are to (1) Maintain an effective and fit military organization with maximum use of available manpower; (2) Provide benefits for eligible Soldiers whose military Service is terminated because of a disability incurred in the LOD. (3) Provide prompt disability processing while ensuring that the rights and interests of the Government and the Soldier are protected. The DES consists of the three systems. (1) The Legacy Disability Evaluation System. Under the legacy system, for cases referred under the duty-related process, the PEB determines fitness and determines the disability rating percentages using the Veterans Administration Schedule for Rating Disabilities (VASRD). The legacy process also includes the Reserve component non-duty related referral process. No disability ratings are assigned for non-duty related cases. (2) Integrated Disability Evaluation System (IDES). The IDES features- (a) A single set of disability medical examinations that may assist the DES in identifying conditions that may render the Soldier unfit. (b) A single set of disability ratings provided by VA for use by both departments. The DES applies these ratings to the conditions it determines to be unfitting and compensable. The Soldier receives preliminary ratings for their VA compensation before the Soldier is separated or retired for disability. (3) Expedited Disability Evaluation System. A voluntary process for Soldiers unfit for catastrophic injuries or diseases in which USAPDA may permanently retire the Soldier for disability without referral to the PEB based on the MTF's medical narrative summary (NARSUM). (j) AR 635-40, paragraph 5-7. Standards for determining permanence and stability for permanent or temporary retirement. A disability will be determined stable when the preponderance of medical evidence indicates the severity of the conditions will probably not change enough within the next five years to increase or decrease the disability rating percentage. Notwithstanding paragraph 5-7a, when a Soldier has a combined rating of 80% or greater for a permanent and stable condition (or conditions) not related to a diagnosis of a mental disorder due to traumatic stress, the Soldier will be permanently retired. In this situation, the Soldier's disabilities are deemed permanent and stable because the provisions of Title 10, U.S. Code 1401 caps the disability rating percentage at 75% for purposes of calculation of the Soldier's retired pay. (k) AR 635-40, paragraph 5-7, paragraph 5-7 5-7d(1). For Soldiers found unfit with a rating of 80% or greater for a permanent and stable condition (or conditions) not related to diagnosis of the mental disorder due to traumatic stress. The Soldier will be permanently retired. (l) AR 635-40, paragraph 5-7. Compensable criteria under Title 10, U.S. Code 1201 through 1203. The statutory requirements listed here concerning unfit, duty status, in sound condition, and LOD determine compensability. The requirements listed here concerning stability, years of service, or disability rating percentage determine disposition (retirement or separation). (a) The disability Is permanent and stable. (b) The member has- (1) At least 20 years of service computed in accordance with Title 10, U.S. Code 1208; or (2) The disability is at least 30% under the standard schedule of rating disabilities in use by the VA at the time of the determination, and either that disability (a) Was not noted at the time of the member's entrance on active duty unless the Secretory of the Military Deportment concerned demonstrates with clear and unmistakable evidence that the disability existed before the member's entrance on active duty and was not aggravated by active military Service; (b) Is the proximate result of performing active duty, (c) Was LOD in time of war or national emergency; or (d) The disability was incurred in the LOD after 14 September 1978. (m) AR 635-40, paragraph 5-7 5-11(c). Presumption of sound condition for Soldiers on orders to active duty specifying a period of more than 30 days. The PEB must base a finding that the Soldier's condition was not incurred in or aggravated by their current period of military Service on objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture. When the evidence is unclear concerning whether the condition existed prior to their current period of military Service or if the evidence is equivocal, the presumption of sound condition at entry to the current period of military Service has not been rebutted, and the PEB will find the Soldier's condition was incurred in or aggravated by military Service. b. The Adjutant General (TAG) of Virginia's response to a Congressional Inquiry from the applicant's Member of Congress, dated 11 May 2018 states, the TAG is responding to the inquiry pertaining the applicant's concerns regarding his separation from the VAARNG. (1) The TAG asked the Director of Personnel and the Deputy States Surgeon to research the applicant's claims and provide a response. (2) Director of Personnel and the Deputy States Surgeon responded that the applicant was discharged honorably due to inability to meet retention standards of chapter 3 Army Regulation 40-501. The conditions that disqualified him from service and the conditions of which he referred to in his statement are not documented as duty related. On 05 September 2017, the applicant waived his right to have his conditions reviewed by the Army Physical Disability Evaluations System for further service and he requested to be discharged on 8 October 2017. c. The applicant's Member of Congress provided him the TAGs response, as in enclosure, in a letter dated 17 May 2018. 15. Under the laws governing the Physical Disability Evaluation System, Soldiers who sustain or aggravate physically-unfitting disabilities must meet several LOD criteria to be eligible to receive retirement and severance pay benefits. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. 16. The Board should consider the applicant's overall record and provided statement in accordance with the published equity, injustice, or clemency determination guidance. 17. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, the Army Aeromedical Resource Office (AERO), and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting a referral to the Disability Evaluation System (DES) and a medical retirement. He states: “I should have been med boarded and retired. I was not med boarded. I was discharged due to my VA disability rating, but was not med boarded or considered for medical retirement.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s Report of Separation and Record of Service (NGB Form 22) for the period of Service under consideration shows the former drilling Guardsman enlisted in the Army National Guard on 11 November 2009 and was discharged from the Virginia Army National Guard (VAARNG) on 8 October 2017 under the provisions of paragraph 6-35l(8) of NGR 600-200, Enlisted Personnel Management (31 July 2009): Medically unfit for retention per AR 40-501. A DD 214 shows he served in Kuwait/Iraq from 30 July 2011 thru 6 December 2011. c. Paragraph 6-35l(8) of NGR 600-200: “Commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per AR 40-501. If the Soldier refuses to report as directed, see paragraph 6-36u below. Commanders who do not recommend retention will request the Soldier’s discharge. When medical condition was incurred in line of duty, the procedures of AR 600-8-4 will apply. Discharge will not be ordered while the case is pending final disposition. This paragraph also includes those Soldiers who refuse or ineligible to reclassify into a new MOS. RE 3.” d. The applicant was placed on a duty limiting permanent physical profile for “Anxiety Disorder” on 28 May 2017. The profile stated “The Soldier is currently in the MEB process.” The applicant was discharged for this medical condition. e. From his Initial Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire dated 12 May 2016: He reported the following stressful experiences while in Iraq: 1. Every second, he felt his life was threatened. Their base was mortared on a daily basis. 2. They had a base become overrun because the Iranians came in; they bombed the Iraqi headquarters (their mission was convoy security); the Americans retreated. 3. No one in his unit got killed; a couple got injured. They had a couple guys get hospitalized. 4. He saw a child with half his face blown off, bleeding, etc. This is the worst thing he experienced. f. Review of his records in JLV show he has a 70% VA service connected disability rating for PTSD. The only other rated condition is obstructive sleep apnea, a condition which is rarely found unfitting by an Army physical evaluation board or the cause for discharge from a reserve component. g. It is unknown why the applicant was separated as if his anxiety disorder/PTSD was not related to his military service to our country when multiple Army regulations require referral of such cases to the DES. h. Paragraph 7-1 of AR 40-400, Patient Administration, states in part: “If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer (PEBLO).” Note there is no mention of component or duty status. Paragraph 7-5b(5) is more direct for this case, stating that one of the situations which requires MEB consideration is “an RC member not on AD who requires evaluation because of a condition that may render him or her unfit for further duty.” i. Paragraph 3-2 of AR 635-40 identifies the error made by his command: “When a commanding officer believes that a member of his command is unfit to perform the duties of his office, grade, rank, or rating because of physical or mental disability, he will refer the member for examination to the medical treatment facility which provides primary medical care to his command.” j. The applicant was errantly administratively discharged when he should have been referred to the DES for at least one duty related condition (PTSD) which failed the medical retention standards of chapter 3, AR 40-501 and led to his discharge. k. It is the opinion of the Agency Medical Advisor that a long overdue referral of his case to the DES is clearly warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined partial relief was warranted. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was sufficient evidence of an error or injustice which would warrant referring the applicant’s medical records to the IDES system for further evaluation to determine if a change in the narrative reason for separation should be made. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF XXX: :XX :XXX 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 the disability evaluation he received from the Army accurately depicted his conditions as they existed at the time. a. If a review by the Office of The Surgeon General determines the evidence supports amendment of his disability evaluation records, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any additional diagnoses (or changed 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 will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be retired for disability, these proceedings serve as the authority to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the narrative reason for separation. 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. National Guard Regulation 600-200 (Personnel-General- Enlisted Personnel Management), dated 25 March 2021, states in paragraph 8-35l(8), that State ARNG and/or USAR Soldiers will be separated for being medically unfit for retention per AR 40-501. Commanders who suspect that a Soldier may not be medically qualified for retention will direct the Soldier to report for a complete medical examination per AR 40-501. Commanders who do not recommend retention will request the Soldiers’ discharge. 2. Army Regulation (AR) 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). a. Paragraph 3-3a provides that performance of duty despite impairment would be considered presumptive evidence of physical fitness. Paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating. b. Paragraph 9-12 (Request for PEB evaluation) states that the Reserve Component Soldiers with non-duty related medical conditions who are pending separation for failing to meet the medical retention standards are eligible to request referral to a PEB for a determination of fitness. Because these are cases of RC Soldiers with non-duty related medical conditions, MEBs are not required and cases are not sent through the PEB Liaison Officers at the medical treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the U.S. Army Reserve Command Regional Support Command or the HRC Command Surgeon's office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier to not meet medical retention standards. c. Paragraph 10-25 (Not in the Line of Duty (NILOD)) states the Department of Defense Instruction 1332.38 (Physical Disability Evaluation) states that members with non-duty related impairments are eligible to be referred to the PEB solely for a fitness determination, but not a determination of eligibility for disability benefits. Further explanation is available in TAPD-Policy Memorandum #4, Processing Reserve Component Non-Duty Related Cases. This policy memorandum outlines the procedures and requirements for processing boards on Reserve Component Soldiers with non-duty related impairments that are pending separation for medical disqualification. Determination of whether a non-duty case is forwarded to the PEB is at the request of the Soldier. The Soldier will have a completed LOD or memo that notifies him/her of non-duty related findings (NILOD). The Soldier may not challenge the PEB findings in person. d. Paragraph 10-25a(2) states the Military Personnel Office is responsible for notifying the Soldier, in writing, that his/her injury is NILOD and that he/she is pending separation for a medical disqualifying condition. The notification will also advise the Soldier that he/she has the right to prepare a Non-Duty PEB packet for a fitness determination. 3. AR 635-40 (Disability Evaluation for Retention, Retirement, or Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) 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. a. The mere presence of 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. b. 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. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards 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. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 5. Title 38, USC, section 1110 (General - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 6. Title 38, USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement): For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 7. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013631 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1