BOARD DATE:  17 April 2020

		DOCKET NUMBER:  AR20180014448


APPLICANT REQUESTS:  in effect, referral to the Physical Disability Evaluation 
System (PDES) for determination of physical disability.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), 
	ending 19 May 2004
*	Medical document indicated on DD Form 149 were not included

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code, section 1552(b); however, the ABCMR conducted a subs	tantive 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 that he was repeatedly injured due to combat operations 
(Convoy Security) in Iraq.  He was discharged/separated from the military without 
having his injuries evaluated by a Medical Evaluation Board (MEB) or a Physical 
Evaluation Board (PEB).  The failure to follow regulations and procedures has limited 
his access to benefits.

3.  The applicant enlisted in the New Jersey Army National Guard (NJARNG) on
26 January 2001.

4.  He was ordered to active duty in support of Operation Enduring Freedom/Iraqi 
Freedom, for the period 7 February 2003 to 19 May 2004.

5.  The applicant did not provide his medical records; however, his military records 
contain a DA Form 2173 (Statement of Medical Examination and Duty Status) which 
shows that while assigned to Iraq he was involved in a vehicle accident, in late February 
2003, injuring his back and shoulder.  This form also shows that he inhaled sulfur 
dioxide in July 2003.  The applicant received outpatient treatment at a military hospital 
in Mosul Iraq and his injuries were considered temporary, not likely to result in a claim 
against the government for future medical care, and incurred in the line of duty.

6.  The applicant's record contains a DD Form 214 (Certificate of Release or Discharge 
from Active Duty) showing he was honorably released from active duty for completion of 
required active service on 19 May 2004.

7.  The applicant was discharged from the NJARNG on 15 August 2005 by reason of 
medical unfitness for retention.  His record is void of the circumstances of his discharge.

8.  His Official Military Personnel File (OMPF) contains an application for Traumatic 
Servicemen Group Life Insurance, which includes the applicant's Department of 
Veterans Affairs Rating Decision, dated 9 November 2013.  This document shows the 
applicant received service connected disability ratings for several injuries/illnesses to 
include Traumatic Brain Injury (TBI).

9.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant's records in iPERMS, the Armed Forces Health 
Longitudinal Technology Application (AHLTA), Health Artifacts Image Management 
Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following 
findings and recommendations:  The applicant enlisted in the New Jersey Army 
Reserve National Guard (NJARNG) on 26 January 2001.  On 7 February 2003 he was 
ordered to Active Duty in support of Operation Enduring Freedom, and served in Iraq 
through 19 May 2004.  While serving in Iraq in February 2004 the applicant states that 
he was injured while manning the turret when the military vehicle he was riding in 
roughly traversed a median in the road resulting in the applicant being slung from side 
to side.  The applicant reported that he injured his lower back and left shoulder as a 
result of the incident.  There is no report of head injury or loss of consciousness at the 
time of the incident.  The applicant was medically evaluated on 4 March 2004 and found 
to have moderate left paralumbar tenderness with muscle spasm, no neck pain or 
tenderness, no obvious signs of head injury, and no obvious evidence of trauma of the 
left shoulder.  A plain radiograph of the lumbar spine done at that time reportedly 
demonstrated no evidence of fracture or dislocation.  An informal line of duty (LOD) 
medical examination determined that the injuries reported by the applicant occurred in 
the line of duty, and a formal LOD was not required.  He was treated conservatively with 
pain and anti-inflammatory medications, instructed on range of motion exercises, and 
placed on a temporary profile.  On 5 March 2004 the applicant reported improvement in 
his symptoms.  The applicant was able to complete his deployment in Iraq, and was 
released from Active Duty (REFRAD) on 19 May 2004 and returned to his NJARNG 
unit.  On 15 August 2005, according to  the applicant’s NGB Form 22,  the applicant 
was honorably discharged from the NJARNG IAW NGR (AR) 600-200, Paragraph 6-
35I(8) for reason of being medically unfit for retention IAW AR 40-501.  However, there 
are no documents included to establish the exact reason as to why the applicant was 
deemed to be medically unfit IAW AR 40-501.  Based on the clinical notes related to the 
injuries the applicant sustained while deployed it would not appear that these injuries 
would rise to the level of causing the applicant to be considered medically unfit.  There 
are no other medical records available for review following the applicant’s return from 
Iraq.  According to JLV the applicant currently has a combined service connected rating 
of 100% for multiple medical and behavioral health conditions, but again there is no 
documentation to indicate any of the diagnoses listed on the applicant’s problem list in 
JLV occurred while the applicant was serving in the Army.  Therefore, it is the 
conclusion of the Agency Medical Advisor, based on the available documentation, that 
there is no indication for the applicant’s record to be referred to the Disability Evaluation 
System for consideration for military medical retirement at this time.

10.  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. 

11.  The Board should consider all factors in accordance with the published equity, 
injustice, or clemency determination guidance.  

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted.  The applicant’s 
contentions, the military record, an advisory opinion, and regulatory guidance were 
carefully considered.  Evidence of record shows the applicant met retention standards 
during his period of active duty service and separated at his completion of required 
active service.  The record also shows, based on the clinical notes related to the injuries 
the applicant sustained while deployed, it would not appear that these injuries would 
rise to the level of causing the applicant to be considered medically unfit.  Based upon a 
preponderance of the evidence to include the recommendation of the advisory official, 
the Board determined there is insufficient evidence that shows a referral to the Physical 
Disability Evaluation System (PDES) was warranted during his period of active service.
?
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.


ADMINISTRATIVE NOTE(S):

Not Applicable

?
REFERENCES:

1.  Title 10, United States Code, section 1552(b), provides that applications for 
correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for 
Correction of Military Records (ABCMR) determines it would be in the interest of justice 
to do so.

2.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to 
perform their military duties because of physical disability incurred while entitled to basic 
pay.  It states that the mere presence of impairment does not, of itself, justify a finding of 
unfitness because of physical disability.  In each case, it is necessary to compare the 
nature and degree of physical disability present with the requirements of the duties the 
Soldier reasonably may be expected to perform because of his or her office, grade, 
rank, or rating.  Under the laws governing the PDES, 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.

3.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to establish service PDES for the purpose of retiring or discharging a 
member if they find the member unfit to perform military duties because of physical 
disability.  The U.S. Army Physical Disability Agency, under the operational control of 
the Commander, U.S. Army Human Resources Command (HRC), is responsible for 
operating the Army's PDES and executes Secretary of Army decision-making authority 
as directed by Congress in Title 10, U.S. Code, chapter 61, and in accordance with 
Department of Defense Directive 1332.18 and AR 635-40.  The objectives of the system 
are to:

*	maintain an effective and fit military organization with maximum use of available 
manpower
*	provide benefits for eligible Soldiers whose military service is terminated because 
of service-connected disability
*	provide prompt disability processing while ensuring that the rights and interests 
of the government and the Soldier are protected

4.  AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for 
retention and separation, including retirement.  Chapter 7 (Physical Profiling), provides 
that the basic purpose of the physical profile serial system is to provide an index to the 
overall functional capacity of an individual and is used to assist the unit commander and 
personnel officer in their determination of what duty assignments the individual is 
capable of performing and if reclassification action is warranted.  

	a.  Paragraph 7-3 (Physical profile serial system) - Four numerical designations (1-4) 
are used to reflect different levels of functional capacity in six factors (PULHES):  P-
physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and 
ears, E-eyes, and S-psychiatric.  

		(1)  Numerical designator 1 under all factors indicates that an individual is 
considered to possess a high level of medical fitness and, consequently, is medically fit 
for any military assignment.  

		(2)  Numerical designators 2 and 3 indicate that an individual has a 
medical condition or physical defect which requires certain restrictions in assignment 
within which the individual is physically capable of performing military duty.  The 
individual should receive assignments commensurate with his or her functional capacity.  

		(3)  Numerical designator 4 indicates that an individual has one or more 
medical conditions or physical defects of such severity that performance of military duty 
must be drastically limited.  The numerical designator 4 does not necessarily mean that 
the individual is unfit because of physical disability as defined in AR 635-40.

	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.

5.  National Guard Regulation 600-200 (Enlisted Personnel Management) states that 
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 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.

6.  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.  The guidance further 
describes evidence sources and criteria and requires Boards to consider the conditions 
or experiences presented in evidence as potential mitigation for misconduct that led to 
the discharge.

7.  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 type of court-martial.  
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice.  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, 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.  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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20180014448


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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