IN THE CASE OF:  . 

		BOARD DATE:  21 September 2020

		DOCKET NUMBER:  AR20200000286


APPLICANT REQUESTS:  Retirement due to physical disability instead of discharge
with severance pay.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, U.S. 
Code, section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) 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.  The applicant states:

*	he went through the Medical Evaluation Board (MEB) process and was medically 
discharged 
*	his disabilities put him over 30 percent disability rating, therefore he should be 
considered retired
*	he is supposed to be receiving Combat Related Special Compensation (CRSC) 
but due to his incorrect status, he was denied CRSC 
*	he was told that because he went through the MEB process, he qualifies for it

3.  The applicant enlisted in the Regular Army on 3 May 2010.

4.  On 15 January 2015, a Physical Evaluation Board (PEB) found the applicant unfit for 
further military service due to a diagnosis of lumbar mild intervertebral disc disease.  
The PEB recommended a 10 percent disability rating and the applicant's separation with 
severance pay.

5.  The PEB found the applicant fit for the following medical conditions because the 
MEB indicated these conditions met retention standards, did not indicate that any of 
these conditions caused profile limitations functional activities, and did not indicate that 
performance issues, if any, were due to these conditions:  

*	laceration scar to left eyelid
*	acute gastroenteritis
*	allergic rhinitis
*	eczema right and left legs
*	eczema right arm
*	left lower extremity radiculopathy
*	right lower extremity radiculopathy
*	right ear normal hearing
*	left ear sensorineural hearing loss
*	subjective tinnitus

6.  The applicant's DA Form 199 (Informal PEB Proceedings) contains the following 
statements in section VII (Instructions and Advisory Statements):

	a.  This case was adjudicated as part of the Integrated Disability Evaluation System 
(IDES).

	b.  As documented in the Department of Veterans Affairs (VA) memorandum dated 
15 December 2014, the VA determined the specific VA Schedule for Rating Disabilities 
(VASRD) code(s) to describe the Soldier’s condition(s).  The PEB determined the 
disposition recommendation based on the proposed VA disability rating(s) and in accord 
with applicable statutes and regulations.

7.  On 26 January 2015, the applicant indicated he concurred with the PEB's findings 
and recommendations and did not request reconsideration of his VA ratings.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) 
confirms he was discharged on 15 March 2015 under the provisions of Army 
Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), 
chapter 4, by reason of disability, severance pay, combat zone (enhanced).  

9.  Based on the applicant's contention the Army Review Board Agency medical staff 
provided a medical review for the Board members. See "MEDICAL REVIEW" section.  

MEDICAL REVIEW:

1.  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, and the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations:  

2.  The applicant was referred to the DES for “Lumbar Herniated Intervertebral Disc,” 
and the medical evaluation board (MEB) determined he failed the medical retention 
standards of AR 40-501, Standards of Medical Fitness, for this one condition.   After 
being counseled on the MEB’s findings by his physical evaluation board liaison officer 
(PEBLO), the applicant agreed “with the board’s findings and recommendation” on 14 
October 2014 and was referred to a physical evaluation board (PEB).

3.  His informal PEB convened on 15 January 2015, at which time they found him unfit 
for “Lumbar mild intervertebral disc disease.”  They found his other claimed conditions 
to not be unfitting.  They applied the Veterans Benefits Administration’s (VBA) 10% 
rating for this disability and recommended the applicant be separated with disability 
severance pay.  After being counseled on the PEB’s findings by his PEBLO, he declined 
an opportunity to have the VBA reconsider his ratings and concurred with their findings 
on 26 January 2015.  

4.  The applicant concurred with the findings of both his MEB and PEB.  Review of the 
case in ePEB identified no irregularities.  The applicant is not eligible for CRSC as the 
first criterion is that the Veteran is receiving military retirement pay.  Given the current 
documentation, it is the opinion of the Agency Medical Advisor that referral of his case 
to the DES is not warranted.


BOARD DISCUSSION:

1.  After review of the application and all evidence, including the ARBA Medical Review, 
the Board found insufficient evidence to grant relief.  The Board agreed that the 
applicant was medically evaluated during his period of service and that at the time of 
discharge his medical conditions were properly evaluated.  The Board agreed that the 
applicant’s disability discharge at 10% was proper and fitting and there is insufficient 
evidence in the applicant’s medical and service records of a medical disability or 
condition that would support referral back to the DES for consideration for military 
medical retirement.  The Army has neither the role nor the authority to compensate for 
progression or complications of service-connected conditions after separation; that role 
and authority lies with the Department of Veterans Affairs, which operates under a 
different set of laws.

2.  The Board agreed with the Medical Review that the applicant is not eligible for CRSC 
as he was not medically retired.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice.  Therefore, the Board determined the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned.


		  
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.

REFERENCES:

1.  Title 10, U.S. Code, 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 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 Department of Defense Directive 1332.18 and Army 
Regulation 635-40.

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.  

	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 physical 
profile rating of "3" or "4" in any functional capacity factor and are referred by a Military 
Occupational Specialty Medical Retention Board; and/or they are command-referred for 
a fitness-for-duty medical examination or directed by medical providers.

	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 or 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 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 
whose medical condition did not exist prior to service who are determined to be unfit for 
duty due to disability are either separated from the military or are permanently retired, 
depending on the severity of the disability.  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 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 medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

	d.  The percentage assigned to a medical defect or condition is the disability rating. 
A rating is not assigned until the PEB determines the Soldier is physically unfit for duty.  
Ratings are assigned from the VASRD.  The fact that a Soldier has a condition listed in 
the VASRD does not equate to a finding of physical unfitness.  An unfitting or ratable 
condition is one which renders the Soldier unable to perform the duties of his or her 
office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of his or 
her employment on active duty.  There is no legal requirement in arriving at the rated 
degree of incapacity to rate a physical condition which is not in itself considered 
disqualifying for military service when a Soldier is found unfit because of another 
condition that is disqualifying.  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.

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.  Directive-type Memorandum (DTM) 11-015, dated 19 December 2011, explains the 
IDES.  It states:  

	a.  The IDES is the joint Department of Defense (DOD)-VA process by which DOD 
determines whether wounded, ill, or injured service members are fit for continued 
military service and by which DOD and VA determine appropriate benefits for service 
members who are separated or retired for a service-connected disability.  The IDES 
features a single set of disability medical examinations appropriate for fitness 
determination by the Military Departments and a single set of disability ratings provided 
by VA for appropriate use by both departments.  Although the IDES includes medical 
examinations, IDES processes are administrative in nature and are independent of 
clinical care and treatment.

	b.  Unless otherwise stated in this DTM, DOD will follow the existing policies and 
procedures requirements promulgated in DODI 1332.18 and the Under Secretary of 
Defense for Personnel and Readiness memoranda.  All newly initiated, duty-related 
physical disability cases from the Departments of the Army, Air Force, and Navy at 
operating IDES sites will be processed in accordance with this DTM and follow the 
process described in this DTM unless the Military Department concerned approves the 
exclusion of the service member due to special circumstances.  Service members 
whose cases were initiated under the legacy DES process will not enter the IDES.

	c.  IDES medical examinations will include a general medical examination and any 
other applicable medical examinations performed to VA Compensation and Pension 
standards.  Collectively, the examinations will be sufficient to assess the member’s 
referred and claimed condition(s) and assist VA in ratings determinations and assist 
military departments with unfit determinations.

	d.  Upon separation from military service for medical disability and consistent with 
BCMR procedures of the Military Department concerned, the former service member 
may request correction of his or her military records through his or her respective 
Military Department BCMR if new information regarding his or her service or condition 
during service is made available that may result in a different disposition.  For example, 
a veteran appeals VA’s disability rating of an unfitting condition based on a portion of his 
or her service treatment record that was missing during the IDES process.  If the VA 
changes the disability rating for the unfitting condition based on a portion of his or her 
service treatment record that was missing during the IDES process and the change to 
the disability rating may result in a different disposition, the service member may 
request correction of his or her military records through his or her respective Military 
Department BCMR.

	e.  If, after separation from service and attaining veteran status, the former service 
member desires to appeal a determination from the rating decision, the veteran has 
1 year from the date of mailing of notice of the VA decision to submit a written notice of 
disagreement with the decision to the VA regional office of jurisdiction.

6.  Title 38 U.S. Code, section 1110 (General - Basic Entitlement) states that 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.  

7.  Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation - Basic 
Entitlement) states that 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.

8.  CRSC is a program that was created for disability and non-disability military retirees 
with combat-related disabilities.  It is a tax-free entitlement that will be paid each month 
along with any retired pay the individual may already be receiving.  In order to qualify for 
CRSC, the individual must be entitled to and/or receiving military retired pay.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20200000286


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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