ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	
	BOARD DATE:  19 July 2019

	DOCKET NUMBER:  AR20180014499


APPLICANT REQUESTS: to be medically retired and receive an increase in his pay 
grade based on his time in service and his ability to achieve the rank of staff sergeant 
by the time he was discharge if he had not been injured.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	2 DD Forms 149 (Application for Correction of Military Record)
*	DD Forms 214 (Certificate of Release or Discharge from Active Duty)
*	Letter from Department of Veteran’s Affairs (VA)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code (USC), section 1552 (b); however, the Army Board for Correction of 
Military Records conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states:

     a.  He was separated from active duty due to injuries he received in combat.  He was 
given a rating of 20 percent for his right shoulder, neck, and traumatic brain injury (TBI).  
His rating should have afforded him a medical retirement.  He was given a lower 
percentage rate to avoid medically retiring him.  His injuries at the time warranted at 
least a 30 percent rating which he was able to prove to VA shortly after being 
discharged.  He has received a substantial increase to his rating.  His TBI was 
increased to 40 percent and post-traumatic stress disorder was added shortly after 
discharge. 

     b.  He was prevented from attending any promotion boards due to having injuries he 
sustained in combat.  He was trying to correct his medical injuries and was later 
medically discharged.  If it were not for his injuries he would have been promoted to the 
rank of SSG as a Forward Observer in the 5 years and 2 months he served.  While on 
profile he continued to do his job better that most of his peers despite the fact he could 
have used his profile to do little to nothing at all.  

3.  The applicant’s medical records are not available for the board’s review and he does 
not provide his medical records.

4.  On 24 June 2011, a Physical Evaluation Board (PEB) found the applicant unfit due to 
healed labrum tear following surgical repair with limited range of motion (ROM) and 
chronic neck pain.  The PEB recommended a 20 percent disability rating.  The PEB 
further recommended separation with severance pay if otherwise qualified.

5.  On 29 September 2011, the applicant was discharged in the rank of specialist/E-4 
under the provisions of Army Regulation 635-40, due to disability, severance pay non-
combat (Enhanced).  There is no evidence the applicant achieved a rank higher than 
specialist/E-4.

6.  On 24 June 2019, the Army Review Boards Agency (ARBA), medical advisor 
provided an advisory opinion.  The ARBA medical advisor states, in part, the applicant 
has already been discharged via an Honorable Discharge.  There is no data to indicate 
that a referral for a second PEB/Medical Evaluation Board (MEB) to increase disability 
based on his active duty medical records would benefit the applicant.  The central issue 
is that based the U.S. Army standards while the applicant was on active duty, he was 
adjudicated in the appropriate manner; to standard.  A copy of the complete medical 
advisory was provided to the Board for their review and consideration.

7.  In response to the medical advisory, the applicant provided the following comment:

     a.  The advisory is inaccurate on all counts pertaining to his medical discharge. The 
opinion is based solely on the information included in his discharge and has no 
knowledge of the circumstances surrounding that discharge.  The opinion states the 
diagnosis of PTSD prior to leaving the Army was not sufficient to indicate that it should 
be included in my MEB/PEB.  There are several reasons for that, first, by the time he 
first began discussions with Mental Health about this issue his MEB/PEB had been 
ongoing for over a year; second, this issue would not have been looked at for inclusion 
in his MEB/PEB, based on his experiences with his other issues, until he had received a 
substantial amount of treatment, possibly years; third, he received very little treatment 
from the Army on this issue.  He went to Mental Health at the insistence of his wife and 
was told he had PTSD and should continue his visits.

     b.  He then scheduled his next visit and waited for the date to arrive.  He received a 
call saying they had to cancel his appointment and would call him at a later date to 
reschedule.  He never received a follow up call to reschedule and ended up never 
having any further visits.  His MEB/PEB was completed before he received proper 
treatment for the issue despite seeking it.  This is the reason PTSD was never 
included and not strictly because of a lack of sufficient evidence.  Instead, it was 
because of a failure on the part of the Army to properly attempt to treat the issue.

     c.  As for the issue with his shoulder and neck injuries, the data regarding those 
were problematic from the very beginning.  When he was asked to move his arm and 
neck in various directions he asked the doctor if he was supposed to stop when the 
pain started, became extremely limiting, or until he just couldn't move the affected 
limb any further.  He was told by the doctor giving the exam "I don't know”. He didn't 
receive any kind of information on the standards to be applied other than to test range 
of motion. So we will just test to the point you are unable to move any further.  This 
created a false impression of his injury because it did not accurately portray the 
"functional" ability of the affected limbs. 

     d.  If he is able to, with an extreme amount of effort, move his shoulder the full 
range of motion, does that mean that he will function properly through the full range 
while performing tasks, especially ones requiring any sort of lifting, pushing, or 
pulling?  Since that initial test he has been tested by other Army doctors at the 
request of VA.  Every doctor tested based on a different standard, other than simple 
range of motion. This tells him there was no consistency and no guidance as to how 
the test should be performed and what the criteria was for performing these tests. If 
there was a set criteria, the doctors that performed my tests certainly didn't receive it 
other than a basic instruction to "test the range of motion of affected limbs".

     e.  He was given the option to appeal the MEB/PEB decision upon receiving it.  He 
was informed the appeals process typically takes longer than the initial MEB\PEB and 
his had taken over a year to complete. After a lot of thought and discussing this with his 
wife, he decided this was a major delay to him planning for his family's future and him 
moving on to how he was going to support his family long term.  He also had a very 
negative feeling that he would be delaying the inevitable without any changes being 
made to the way his case was being assessed and ending up in the same place with 
even more wasted time.  The issues he dealt with were not isolated to his case.  He was 
told by several others, going through and having gone through the same thing that this 
was standard practice by the Army.  After accepting his MEB/PEB results, even though 
he didn't agree with them, he spoke to the retention noncommissioned officer to get him 
to sign off on his clearing papers.

     f.  He told the applicant that his relative worked in the department that handled 
MEB/PEB reviews and it was standard practice to give the soldiers "a low ball decision 
initially".  He also said that if you appeal they usually raise the decision to a more 
accurate amount once they realize you are not going to just take whatever they throw at 
you.  His relative recommended always appealing the initial decision.  Unfortunately the 
applicant had already signed his agreement papers and could not benefit from the 
insight of someone with firsthand knowledge of the inner workings of the MEB/PEB 
decision process.  He realizes he should have appealed the decision while he had the 
chance. In his defense, the extremely long wait times create an environment where you 
are pressured into taking whatever decision you receive. If you don't, you end up in a 
sort of limbo waiting to move on to the inevitable next step in your life and as a 31 year 
old with a wife and 3 kids at the time that pressure was substantial.  He ask that the 
Board take an honest look at the circumstances of his case and not just the facts the 
Army chose to record while they left out and overlooked others. 
   
8.  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.  

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) 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.

10.  Army Regulation 40-501 (Standards of Medical Fitness) provides that for an 
individual to be found unfit by reason of physical disability, he/she must be unable to 
perform the duties of his or her office, grade, rank or rating.  Performance of duty 
despite impairment would be considered presumptive evidence of physical fitness. 

11.  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, including the medical advisory opinion 
and the applicant’s rebuttal to it, the Board found insufficient evidence to grant relief.  

1.  Regarding the applicant’s request to receive medical retirement, the Board agreed 
with the medical advisory opinion that the applicant’s diagnosis of PTSD just prior to his 
leaving the U.S. Army was not sufficient to indicate that this should have been included 
in the PEB/MEB.  There was no data indicating that the applicant was administered any 
evidence-based treatment protocols to clarify if PTSD should have been included in the 
PEB/MEB.  While PTSD was documented in the applicant’s official medical record, the 
condition did not fail medical retention standards at the time of discharge.  The VA 
properly provided him support and benefits for service connected medical concerns 
post-service.

2.  The Board further found a lack of evidence that the applicant was entitled to 
additional pay for serving on active duty after his date of discharge on 29 September 
2011; the Board is unable to speculate whether the applicant might have achieved 
additional rank had the applicant remained on active duty if he had not been injured.  
The Board therefore finds that relief is not warranted in this case. 


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.  (Optional as applicable.)  Title 10, USC, section 1552(b), provides that applications 
for correction of military records must be filed within three years after discovery of the 
alleged error or injustice.  This provision of law also allows the Army Board for 
Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file 
within the three-year statute of limitations if the ABCMR determines it would be in the 
interest of justice to do so.

2.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability.  The U.S. Army Physical Disability Agency 
is responsible for administering the Army physical disability evaluation system and 
executes Secretary of the Army decision-making authority as directed by Congress in 
chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 
(Physical Evaluation for Retention, Retirement, or Separation).

	a.  Soldiers are referred to the disability system when they no longer meet medical 
retention standards in accordance with Army Regulation 40-501 (Standards of Medical 
Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical 
profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention 
Board; and/or they are command-referred for a fitness-for-duty medical examination.

	b.  The disability evaluation assessment process involves two distinct stages: the 
MEB and PEB.  The purpose of the MEB is to determine whether the service member's 
injury or illness is severe enough to compromise his/her ability to return to full duty 
based on the job specialty designation of the branch of service. A PEB is an 
administrative body possessing the authority to determine whether or not a service 
member is fit for duty.  A designation of "unfit for duty" is required before an individual 
can be separated from the military because of an injury or medical condition.  Service 
members who are determined to be unfit for duty due to disability either are separated 
from the military or are permanently retired, depending on the severity of the disability 
and length of military service.  Individuals who are "separated" receive a one-time 
severance payment, while veterans who retire based upon disability receive monthly 
military retired pay and have access to all other benefits afforded to military retirees.

	c.  The mere presence of a medical impairment does not in and of itself justify a 
finding of unfitness.  In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his or her office, grade, rank, or rating.  
Reasonable performance of the preponderance of duties will invariably result in a 
finding of fitness for continued duty.  A Soldier is physically unfit when a medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

3.  Army Regulation 635-40 establishes the Army Disability Evaluation System and sets 
forth policies, responsibilities, and procedures that apply in determining whether a 
Soldier is unfit because of physical disability to reasonably perform the duties of his 
office, grade, rank, or rating.  Only the unfitting conditions or defects and those which 
contribute to unfitness will be considered in arriving at the rated degree of incapacity 
warranting retirement or separation for disability.

	a.  Paragraph 3-2 states disability compensation is not an entitlement acquired by 
reason of service-incurred illness or injury; rather, it is provided to Soldiers whose 
service is interrupted and who can no longer continue to reasonably perform because of 
a physical disability incurred or aggravated in military service.

	b.  Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting 
disabilities must meet the following line-of-duty criteria to be eligible to receive 
retirement and severance pay benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier was 
entitled to basic pay or as the proximate cause of performing active duty or inactive duty 
training.

		(2)  The disability must not have resulted from the Soldier's intentional 
misconduct or willful neglect and must not have been incurred during a period of 
unauthorized absence.

4.  Army Regulation 40-501 provides that for an individual to be found unfit by reason of 
physical disability, he/she must be unable to perform the duties of his or her office, 
grade, rank or rating.  Performance of duty despite impairment would be considered 
presumptive evidence of physical fitness. 

5.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180014499
	
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