ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  20 December 2019

	DOCKET NUMBER:  AR20190006205


APPLICANT REQUESTS:  This case comes before the Army Board for Correction of 
Military Records (ABCMR) as a voluntary court remand by the Secretary of the Army 
and a stay of proceedings, filed in the U.S. District Court of Federal Claims and 
issued by the Court on 1 May 2019 in Civil Action   Counsel for 
the applicant contends that any remand should be directed to a physical disability 
evaluation board, not the ABCMR.  The Court granted the request to refer the case 
on remand to the ABMCR for two principle reasons.  First, the ABMCR has not 
considered the findings of Dr. XXXX and secondly, it allows for the ABCMR to create 
a more extensive record of the Army’s consideration of all the applicant’s claims.  
Thus, allowing for further litigation in the court. 

     a.  This is a military disability retirement pay case challenging the applicant’s 
separation from the Army National Guard.  The applicant alleges the ABCMR failed 
to offer him appropriate relief regarding his separation.  

     b.  The court’s instructions to the Secretary of the Army include determining and 
explaining whether the applicant was unfit for duty at the time of his separation from 
the Army National Guard based upon the existing ABCMR record and any other 
documentation received by the ABCMR on remand.  Secondly, the ABCMR should 
address in its decision any other issues the applicant raises in written submission to 
the ABCMR.  Finally, the ABCMR shall determine and explain whether the applicant 
is entitled to any relief, including correction of records and retirement pay, based 
upon any errors or injustices found.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	United States Court of Federal Claims Case 
*	Tab 1:  Memorandum from National Guard Bureau (NGB) to Army Review 
Board Agency (ARBA) pertaining to Army Docket Number AR20150015620, 
dated 9 January 2019
*	Tab 2:  Letter from Defense Health Agency, Fort Belvoir Community Hospital 
to Applicant, dated 4 April 2017
*	Tab 3:  Medical Service Treatment and Department of Veterans Affairs (VA) 
clinical records and notes (154 pages)
*	Tab 4:  Memorandum from NGB to State of Florida Joint Forces 
Headquarters, dated 28 April 2011 
*	Tab 5:  Memorandum from NGB to ARBA pertaining to AR20150015620, 
dated 13 September 2016, subject:  Advisory Opinion – Applicant
*	Tab 6:  Memorandum for Record, dated 11 April 2011, subject:  Statement of 
Lateness for Applicant [Line of Duty]
*	Tab 7:  Letter from ARBA to Applicant, dated 28 February 2017
*	Tab 8:  Memorandum from ABCMR to NGB, dated 28 February 2017, 
subject:  ABCMR Recording of Proceedings [Applicant] AR20150015620
*	Tab 9:  ABCMR AR20150015620 Vote Sheet
*	Tab 10:  ABCMR AR20150015620 Board Determination/Recommendation
*	Tab 11:  ABCMR AR20150015620 Record of Proceedings
*	Tab 12:  Letter from ARBA to Applicant, dated 23 September 2016, subject:  
ARBA Medical Advisory
*	Tab 13:  Memorandum from NGB to ARBA pertaining to AR20150015620, 
dated 22 September 2016, subject: Advisory Opinion – Applicant 
*	Tab 14:  Memorandum from NGB to ARBA pertaining to AR2015001560, 
dated 13 September 2016, subject: Advisory Opinion – Applicant [duplicate 
submission of Tab 5]
*	Tab 15:  DD Form 149, dated 12 September 2015, with supporting evidence 
*	Tab 16:  Memorandum from NGB to State of Florida Joint Forces 
Headquarters, dated 28 April 2011 [duplicate submission of Tab 5]
*	Tab 17:  Memorandum for Record, dated 11 April 2011, subject:  Statement 
of Lateness for Applicant [duplicate submission of Tab 6]
*	Tab 18:  Applicant Army Military Human Resource Record (301 pages)
*	Tab 19:  Applicant Service Treatment Records (126 pages)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in 
the previous consideration of the applicant’s case by the ABCMR in Docket Number 
AR201500620 on 27 February 2017.

2.  Counsel states the applicant is a Veteran of the War on Terrorism.  He served 
multiple tours in Iraq as a combat flight medic.  Due to his wartime service, the 
applicant suffers from post-traumatic stress disorder (PTSD).   In 2010, the Army 
National Guard determined he failed medical retention standards set forth in Army 
Regulation 40-501 (Standards of Medical Fitness) requiring his discharge.  Counsel 
argues because the Army National Guard determined the applicant did not meet 
medical retention standards, his record should have been referred into the Physical 
Disability Evaluation System (PDES) for a full and fair physical disability evaluation 
board hearing.  The Army National Guard determined the applicant’s PTSD was not 
service-connected, failed to provide him with a physical evaluation board (PEB) 
hearing and denied him a military medical retirement and its associated benefits. 

     a.  Counsel defines PTSD and its symptoms which was initially classified by the 
American Psychiatric Association in 1980.  Counsel states, "The recognition of 
PTSD as a distinct mental health disorder has enabled mental health professionals 
to provide early assessment and diagnosis of the condition so that individuals can 
receive intervention and proper treatment, thus enabling them to cope with the 
effects of this devastating disorder and lead healthy and fulfilling lives."

     b.  He cites the Department of Veteran Affairs (VA) reports up to 20 percent of 
the Veterans who served in Afghanistan and Iraq may have PTSD.  He notes almost 
two million United States Armed Forces personnel have deployed in support of the 
global war on terrorism.  (He does not provide his source of information.)

     c.  On 3 November 2010, a (State of Florida) State Surgeons Medical Discharge 
Review Board determined the applicant failed to meet medical retention standards of 
Army Regulation 40-501, chapter 3.  Based on this finding, he was subject to 
administrative separation without PDES processing.  At the time he had 18 years, 
11 months and 14 days of service.  As a result of denying him access to the PDES, 
he was denied military medical retirement, health benefits, and military retired pay.  
Per counsel, the (State of Florida) Army National Guard acted arbitrarily, capriciously 
and contrary to law.  Counsel cites Title 10, U.S. Code (USC), section 1201 as the 
applicable law authorizing the applicant medical retirement.  Counsel states, 
"Medical retirement is issued when a service-connected medical condition(s) is 
severe enough to interfere with the proper performance of a soldier’s military duties 
and the combined injury is rated 30% [percent] or more by the VA." 

     d.  Counsel cites Chapter 61 of Title 10, USC as the source for discharging 
members of the U.S. Armed Forces for medical conditions.  The services are 
authorized to separate a member of their service when a determination of unfitness 
is made meaning a service member cannot perform the duties of his office, grade, or 
rank due to physical or mental disability.  He states, "The Secretary [has] broad 
discretion to design the regulations for determining fitness."

     e.  Counsel states Army Regulation 635-40 (Physical Evaluation for Retention, 
Retirement or Separation) establishes the Army PDES under the provision of 
Title 10, USC, Chapter 61 and Department of Defense Instruction 1332.18 (Disability 
Evaluation System).  He acknowledges the PDES consists of several phases of 
evaluation and review resulting in a final disability determination for a Soldier.  He 
then defines the Army PDES by saying it begins when a Soldier’s commander, 
commander of a medical treatment facility, or the Commander, U.S. Army Human 
Resources Command refers a Soldier for medical evaluation under the provisions of 
Army Regulation 635-40, paragraphs 4-6 to 4-8.  

          (1)  The first phase consists of the medical evaluation board under the 
provisions of Army Regulation 40-501, chapter 3 wherein the Soldier’s medical 
status, duty limitations and medical qualification for retention are documented and 
recorded.  Counsel cites Army Regulation 40-501, paragraph 10-25 as the source 
for processing Soldiers with conditions incurred in the line of duty.  Soldiers with in 
line of duty determinations are processed through referral to a medical evaluation 
board within the normal PDES process as defined in Army Regulation 635-40.  The 
medical evaluation board evaluates the Soldier through a series of examinations.  If 
after convening a medical evaluation board determines a Soldier’s physical or 
behavioral health conditions fall below the minimum retention standards as set forth 
in Army Regulation 40-501, the Soldier’s medical record and its associated 
documents are referred to a physical evaluation board for a fitness determination. 

          (2)  For Soldiers that are members of an Army National Guard unit who incur 
an injury that is not in line of duty, the State Surgeon is responsible for conducting a 
review of the medical records (under the provisions of Army Regulation 40-501, 
chapter 3).  If a State (Medical Review Board) determines a Soldier is unfit, the 
Soldier is notified of the State decision and after notification the Soldier may request 
a review by a physical evaluation board in accordance with Army Regulation 40-501, 
paragraph 10-25.   

          (3) A physical evaluation board is the sole forum responsible for determining a 
Soldier’s fitness for duty.  Normally, the physical evaluation board renders a 
determination of unfitness when a Soldier’s disability interferes with a Soldier’s 
military service career.  Under the provisions of Title 10, USC, section 1214 the 
physical evaluation board reviews the nature, cause, degree of severity, and 
probable permanency of the Soldier’s physical or behavioral health condition.  The 
Soldier’s physical or behavioral health condition is evaluated against the 
requirements of their particular office, grade, rank or rating.  The physical evaluation 
board provides for a full and fair hearing for the Soldier as required by law.  From the 
findings of this board, a Soldier’s eligibility for retention, separation or retirement are 
determined based upon the combined percentage of disability ratings.  Soldiers who 
receive a combined physical evaluation board rating of 30 percent or greater are 
authorized retirement including retired pay, medical care, military commissary and 
exchange benefits.  Soldiers whose ratings are below 30 percent are separated with 
severance pay.  He cites Title 10, USC, sections 1201 and 1203 as the sources for 
retired pay or separation with severance pay.

          (4)  By law, the United States armed forces use the Veterans Administration 
Schedule for Rating Disabilities (VASRD) when rating the disability of Soldiers found 
unfit due to physical or behavioral health disability.  Counsel states, "The VASRD 
dictates that a soldier found unfit due to PTSD receive a minimum 50 [percent] 
disability rating for PTSD for the first six months post-discharge with a re-evaluation 
thereafter to determine a permanent disability rating."  He cites Title 38, Code of 
Federal Regulation, section 4.129 as the source for his direct quote. 

     f.  Counsel outlines in narrative form the applicant’s military and medical history 
including the following pertinent facts:

*	on 3 July 1991, he enlisted in the Regular Army
*	he served as a medic
*	in 1993-1994, he served in Somalia
*	in 1999, he served in Albania and Kosovo
*	on 13 March 2001, he was honorably released from the Regular Army
*	on 14 March 2001, he enlisted in the Florida Army National Guard (FLARNG)
*	on 27 January 2003, he was mobilized serving in Kuwait and Iraq
*	on 26 March 2004, he was demobilized
*	on 3 June 2006, he was again mobilized deploying to Iraq from 19 September 
2006 to 9 September 2007
*	after his second deployment he displayed symptoms of PTSD
*	in October 2007, he received behavioral health treatment at a military hospital 
where he was diagnosed with an adjustment disorder with anxious mood
*	in January 2008, the VA assigned a 30 percent rating for service-connected 
PTSD with an overall combined rating of 40 percent 
*	in 2009, he displayed numerous PTSD symptoms interfering with his 
advanced studies and he used alcohol as a sleep aid 
*	in 2010, the VA increased its percentage rating for PTSD from 30 percent to 
50 percent
*	he self-reported seeing combat wounded personnel with "mangled bodies"
*	he self-reported his unit was "repeatedly under attack"
*	in April 2010, his unit commander received a memorandum from the FLARNG 
showing the applicant was profiled with a rating of "3" in the psychological 
factor requiring review by the State medical review board for a determination 
of his medical fitness standards for retention in the FLARNG
*	in October 2010, a behavioral health provider and a physician confirmed the 
PTSD diagnosis indicating he should not be assigned to combat duty
*	in October 2010, his unit commander stated he could not perform his duties 
as a flight medic during peacetime or wartime
*	on 3 November 2010, the State medical review board determined he failed 
medical retention standards of Army Regulation 40-501 determining he was 
not fit for duty, was nondeployable and line of duty for PTSD 
*	the Florida Deputy State Surgeon advised the applicant’s unit command by 
memorandum he did not meet medical retention standards informing the unit 
commander the applicant could request a physical evaluation board
*	the FLARNG processed his medical condition as "Not in the Line of Duty" 
acting as if it served as the medical evaluation board
*	his unit commander never counseled him concerning requesting a physical 
evaluation board
*	on 22 June 2011, he was discharged from the FLARNG for failure to meet 
medical retention standards
*	on 24 June 2011, he received written notification he was eligible for retired 
pay at age 60 based on a physical disability not incurred in the line of duty

     g.  Counsel contends the applicant was never provided with the FLARNG 
memorandum advising him he had the right to appeal the State medical board 
decision to a physical evaluation board.  He further contends the applicant was not 
formally counseled by his unit commander; therefore, based on a lack of 
documented evidence showing the applicant was counseled his rights for due 
process were violated because he did not know he could appeal the State decision.  
Counsel states, in effect, that without a duty-related physical evaluation board the 
applicant could not be medically retired nor could he receive the benefits rightfully 
owed to him under Title 10, USC, section 1201.  

     h.  The applicant applied to the ABCMR in 2015 requesting a correction to his 
record to show he was medically retired due to PTSD which was incurred in the line 
of duty.  During the processing of his case, the ABCMR requested an advisory 
opinion from the NGB.  By memorandum, the NGB advisory stated, "[The applicant] 
was not afforded due process for 'PTSD' in the line of duty."  The advisory 
recommended the applicant undergo a medical evaluation board/physical evaluation 
board and if found unfit for duty he should be medically retired effective 22 June 
2011 with back pay and associated benefits.  This advisory was reviewed by the 
FLARNG and their representative concurred with its recommendations.  On 
28 February 2017, the ABMCR granted partial relief.  It did not correct the 
applicant’s record based on evidence presented by the applicant.  The ABMCR 
directed the Office of the Surgeon General to review the applicant’s file to determine 
if he should enter the PDES.  Counsel finds the ABCMR decision to be arbitrary and 
capricious because it acknowledged the applicant met the criteria for a medical 
retirement yet it recommended he enter the PDES suggesting he start with new 
evaluations to determine if he met or failed medical retention standards. 

     i.  On 5 April 2017, an Army medical provider sent the applicant a letter stating, in 
effect, that the Fort Belvoir Community Hospital medical evaluation board section 
determined his medical records should not be referred to a medical evaluation 
board/physical evaluation board.  This letter did not address in detail the applicant’s 
diagnosis or treatment for PTSD nor the State medical review board’s decision.  The 
Army medical provider concluded that in 2010 and 2011 he was managing his PTSD 
through counseling and medication.  Additionally, he reported to his FLARNG unit for 
his required drills.  Thus, based on the evidence of record she and the staff of the 
medical evaluation board determined he did not meet the criteria for entering the 
PDES.  She did acknowledge the applicant’s diagnosis of PTSD as being service-
connected.  Counsel states her advisory is in direct violation of the intent of Army 
Regulation 40-501.  

     j.  Counsel through numerous arguments asserts the remedies available to the 
ABCMR are to correct the applicant’s record to show he was medically retired based 
on the VA VASRD rating of 30 percent for PTSD or provide him with a fitness 
hearing through a physical evaluation board.  He disagrees with the 
recommendation to refer the applicant to a medical evaluation board because from 
his perspective the State medical evaluation board served as a Department of the 
Army medical evaluation board.  The applicant was not afforded due process when 
his unit commander failed to counsel him advising him he had the right to appeal the 
State medical review board’s decision to a physical evaluation board.   

     k.  Counsel concludes his statement by requesting a prayer for relief and award 
the applicant the following relief:

*	disability retirement pay and benefits
*	correct the record to show he was medically retired on 22 June 2011 because 
of his VA service-connect PTSD rating of 30 percent
*	alternatively, remand the case to a physical evaluation board for a proper 
determination of fitness for duty providing him with his right to a hearing
*	award the applicant interest, costs, and attorney’s fees
*	grant such other relief as the Court deems just and proper

3.  On 3 July 1991 the applicant enlisted in the Regular Army.  He completed training 
and was awarded military occupational specialty (MOS) 91K (Abrams Armor 
Crewman).  Upon completion of his first enlistment period, he attended and 
completed training for MOS 91B (Medical Specialist) which was designated as his 
primary MOS. 

4.  On 7 February 2001 he enlisted in the Army National Guard of the United States 
(ARNGUS) for a 1 year period of service.  

5.  On 13 March 2001 he was honorably discharged from the Regular Army upon the 
completion of his required service.  He was issued a DD Form 214 (Certificate of 
Release or Discharge from Active Duty) documenting his net active service of 
9 years, 8 months and 11 days.  His DD Form 214 also documents the following 
overseas service:

*	service in Somalia from 3 October 1993 to 7 February 1994
*	service in Albania from 5 April to 1 June 1999
*	service in Kosovo from 2 June to 30 July 1999

6.  On 12 April 2002 the FLARNG Deputy Chief of Staff for Personnel signed a 
memorandum correcting the applicant’s military records to show he was 
administratively assigned to the FLARNG effective 14 March 2001.  This correction 
established his expiration of term of service in the FLARNG as 13 March 2002.  He 
extended his ARNGUS enlistment contract multiple times.

7.  On 27 January 2003 he was mobilized as a member of his unit, Company A, 
161st Medical Battalion, FLARNG.  He served in MOS 91W as a Nuclear Medical 
Specialist supporting Operation Enduring Freedom/Noble Eagle under the provisions 
of Title 10, USC, section 12302.  He served in Kuwait and Iraq from 21 April 2003 to 
25 March 2004.  

8.  On 12 May 2004 he was honorably released from active duty upon the 
completion of his required service and transferred to his FLARNG unit.  At the time 
he was issued a DD Form 214 documenting his period of active duty service of 
1 year, 3 months and 16 days.  During this period of mobilized service he did not 
receive the Combat Medical Badge.  A review of his electronic personnel record 
shows he did not incur an injury in the line of duty during this period of active duty 
service.

9.  On 1 May 2005 he received his DA Form 2166-8 ([Noncommissioned Officer 
(NCO)] Evaluation Report) for the period from December 2003 through November 
2004.  His principal duty title shows he served as a health care sergeant/squad 
leader administering emergency and routine medical care to battle and non-battle 
casualties.  He supervised field and clinical medical facilities under the supervision 
of a physician, nurse or physician assistant.  There are no derogatory comments on 
this evaluation.  He was rated successfully in all five areas of responsibilities during 
this period which included Operation Iraqi Freedom.  His rater said he was among 
the best sergeant’s he rated.  His senior rater commented he displayed excellent 
leadership during the deployment acting as a platoon sergeant.  His senior rater 
stated he had excellent potential and he should be promoted ahead of his peers. 

10.  On 10 November 2005 he was promoted to staff sergeant/pay grade E-6 in the 
FLARNG.

11.  On 3 June 2006 he was mobilized in support of Operation Iraqi Freedom in 
accordance with Title 10, USC, section 12302.  He served as a health care 
specialist.  

12.  On 6 November 2006, the brigade surgeon for Headquarters Company, 
82nd Sustainment Brigade, 82nd Airborne Division issued a memorandum verifying 
Company C, 1st Battalion, 111th Aviation Regiment (General Support Aviation 
Brigade) supported the 82nd Airborne Division for more than 30 continuous days 
during Operation Iraq Freedom.  The aviation unit performed multiple medical 
sustainment missions in support of ground operations.  

13.  On 2 September 2007, his battalion commander initiated and signed a 
memorandum for record showing he was assigned to Company C, 1st Battalion, 
111th Aviation Regiment (Attack Helicopter) (General Support Aviation Battalion) 
supporting the 36th Combat Aviation Brigade, 36th Infantry Division in Tallil and 
Balad, Iraq during the period from 19 September 2006 to 3 September 2007.  It 
further shows he was authorized the Iraqi Campaign Medal and the Armed Forces 
Reserve Medal with "M" Device for his mobilized period of service.  There is no 
evidence he was authorized the Combat Medical Badge or the Combat Action 
Badge showing he was engaged with the enemy under hostile fire.  

14.  On 26 October 2007 upon his redeployment for demobilization, he was seen by 
a licensed clinical social worker at a military installation behavioral health clinic for 
stress attributed to his deployment.  The social worker indicated his problem was he 
had an anxious affect with a potential adjustment disorder and recommended the 
applicant follow up with a VA facility and the Military One Source upon his 
demobilization.  The social worker stated the applicant was cleared for release from 
active duty because his thought process was clear and coherent, his judgment was 
intact, and his speech was normal.  He had no history of suicidal or homicidal 
ideation.  The medical provider documented his notes on Standard Form 512 
(Consultation Sheet).  

15.  On 30 October 2007, the applicant was seen as an outpatient at the post 
Readiness Processing Center by a provider whose medical qualifications were not 
recorded on his Standard Form 600 (Chronological Record of Medical Care).  The 
provider stated the applicant was cleared by the behavioral health clinic for 
demobilization.  There are a number of health problems listed on this form among 
them adjustment disorder with anxious mood.  There are no formal diagnostic 
records showing he was diagnosed with adjustment disorder with anxious mood by a 
psychiatrist or a psychologist holding a doctorate degree in psychology.  There were 
a number of physical problems listed on the form including herpes simplex for which 
he was prescribed Valtrex (valacyclovir hydrochloride).  His chief complaint was 
lumbago, pain in the muscles and joints of his lower back.  He underwent x-rays and 
a follow-on appointment was scheduled for his lower back.  

16.  On 11 January 2008 the applicant was released from active duty, not by reason 
of physical disability, upon the completion of his required active service.  He was 
issued a DD Form 214 documenting he served for 1 year, 7 months and 9 days of 
active service as a health care specialist in support of Operation Iraqi Freedom.  He 
served in Iraq from 19 September 2006 through 9 September 2007.   He received 
the Air Medal; however, there is no record he received the Combat Medical Badge 
or the Combat Action Badge.

17.  On 14 March 2008, two months post-deployment, the applicant was seen by a 
psychiatrist at a VA medical center.  His record contains the psychiatrist’s medical 
notes from his previous application and he resubmitted them with the court remand.  
The psychiatrist stated the applicant was pleasant with a good rapport who was easy 
to talk to.  The applicant was appropriate in appearance and made good eye contact 
with him during the appointment.  He had significant difficulty discussing his 
emotional reactions to the war crying throughout the session.  He also displayed 
multiple emotions when describing his wartime experiences.  The psychiatrist also 
identified the applicant had "old psychological baggage related to family problems." 

     a.  The applicant served in Balad and Diwania were he "witnessed too many 
injuries and mangled bodies, military and civilians; his unit was repeatedly under 
attack, with some close calls; always on alert… situation was overwhelming, coped 
with it by reminding self it was going to end."

     b.  He started to show evidence of emotional overload in Iraq self-reporting his 
personality changed.  Post service he reports his academic grades suffered 
somewhat because he had difficulty concentrating and was overwhelmed by his 
emotions.  He relieved his stress by using alcohol.  

     c.  The psychiatrist described the applicant as having good memory recall, high 
average intelligence, fairly good insight, coherent and logical thought processes and 
was cognitively orientated to space, time and location.  A Patient Health 
Questionnaire-2 (PQH-2) screen was performed showing the applicant was negative 
for depression.  A PTSD questionnaire assessment was conducted showing the 
applicant tested positive for PTSD.  

     d.  The VA psychiatrist diagnosed the applicant as follows:

*	Axis I (Mental Disorders):  PTSD with a note to rule out alcohol abuse
*	Axis II (Psychiatry):  No diagnosis
*	Axis III (Medical and Physical Conditions):  Anterior cruciate ligament 
(ACL) and gastroesophageal reflux disease (GERD
*	Axis IV (Environmental and Psychosocial Stressors):  recent return from 
Iraq
*	Axis V (Global Assessment of Functioning (GAF)):  current GAF score 53 
or moderate symptoms

18.  On 24 June 2008 the FLARNG issued State Orders 178-076 transferring the 
applicant to the Inactive National Guard effective 1 August 2008.  The supporting 
documents associated with this order show the applicant by letter requested transfer 
to the Inactive National Guard so he could attend law school.  He also provided a 
letter from the law school affirming he was a student.  His company commander 
favorably endorsed his request and subsequent orders were published transferring 
him to the Inactive National Guard for an indefinite period. 

19.  On 3 July 2008 the applicant underwent an initial compensation and pension 
examination by the VA.  Upon review of his record, it showed outpatient treatment 
for a mental disorder in 2008 and his record did not show he was hospitalized for a 
mental disorder.  His outpatient therapy was having a positive effect wherein he 
noted less anxiety.  The examiner, a psychologist, noted there were no inappropriate 
or negative behaviors, no obsessive/ritualistic behaviors, no panic attacks, no 
presence of suicidal or homicidal thoughts, he had good impulse control, and he had 
no episodes of violence.  He had the ability to maintain good personal hygiene and 
had no problems with activities of daily living.  His remote, recent and immediate 
memory were within normal limits.  
     a.  The PTSD stressors identified included service as a flight medic at Balad 
(Camp Echo), Iraq.  He felt intense fear, hopelessness, and horror due to seeing and 
providing treatment to personnel with morbid injuries.  

     b.  He met the Diagnostic and Statistical Manual of Mental Disorders (DSM) IV 
stressor criterion for PTSD.  However, he had no "total" occupational and social 
impairment with no deficiencies in judgment, thinking, family problems, work, mood 
or school.  There was reduced reliability and productivity due to PTSD symptoms 
such as declined academic grades from A’s to B’s because he found it hard to 
concentrate due to anxiety and intrusive thoughts.  At his civilian employment he 
reported briefly stepping away from patients due to personal distress.  He self-
reported being withdrawn from social outings. 

     c.  The compensation medical examiner noted the applicant’s PTSD is as least 
as likely as not (50/50 probability) caused by or a result of the diagnosis of stress 
and adjustment disorder noted on 26 October 2007 in his service treatment record.  

20.  On 29 July 2008 the VA sent the applicant a letter informing him of their 
decision concerning his claim received on 6 March 2008.  His benefit payment start 
date was established as 1 February 2008.  The VA rated him 30 percent for PTSD, 
10 percent for lumbar spine strain (claimed as low back pain), and zero percent for 
herpes zoster (claimed as shingles).  His combined VA rating was 40 percent.  This 
letter states, "An examination will be scheduled at a future date to evaluate the 
severity of your service connected PTSD."  This letter also shows the applicant was 
employed full time as a medical technician and was attending a local university 
majoring in history with the intent to attend graduate school. 

21.  On 1 August 2008 he was transferred to the Inactive National Guard by State 
orders so he could attend law school. 

22.  On 7 August 2009 he was transferred from the Inactive National Guard to the 
Active National Guard by FLARNG Orders 219-020.  

23.  On 8 February 2010, he and his medical records at the VA underwent a 
compensation and examination review for PTSD.  In summary, he still was receiving 
treatment for PTSD as an outpatient and was prescribed medication.  He 
participated in group therapy and individual psychotherapy with an effectiveness 
rating of "Fair."  The examiner commented, "While the veteran continues to have 
notable continuing PTSD symptoms (nightmares, multiple triggered daily intrusive 
memories, avoidance behaviors, hypervigilance/hyperarousal, irritability), his sleep 
has significantly improved with psychotropic medications, allowing for slightly 
improved mood and significantly improved sleep quality."  Of note, the medical 
examiner documented the fact the applicant had completed three semesters of law 
school with a projected graduation in May 2011. 

24.  Also during the 8 February 2010 examination, the applicant self-reported he 
continued to drill with his FLARNG unit but his flight and weapons security status 
were on hold due to his PTSD.  This action by his unit leadership upset him, but he 
stated he continued with his military duties.  His unit was scheduled for a 
deployment to the Middle East in the summer of 2011, but he stated, "He won’t go… 
I can't do that again…"  He indicated he was eligible to retire in 2012 with 20 years 
of qualifying service for nonregular retirement.  He did mention he was pending a 
medical board.  The applicant continued to meet the DSM-VI for PTSD (chronic), 
mood disorder not otherwise specified, and alcohol abuse in sustained remission. 

25.  On 30 August 2010, the applicant's VA medical provider who held a Master of 
Science Degree in Nursing completed a FLARNG form upon the request of the 
FLARNG State Medical Review Board.  The VA nurse indicated she started treating 
the applicant on 16 April 2009 and she was currently seeing him as a patient.  She 
stated the applicant’s current diagnoses under the DSM-IV were as follows:

*	Axis I:  PTSD and alcohol abuse in full sustained remission
*	Axis II:  None
*	Axis III:  Degenerative joint disease, flat feet, GERD and knee arthralgia 
*	Axis IV:  Inadequate social support
*	Axis V:  GAF scale score of 55 (moderate PTSD)

26.  The VA nurse further stated he was receiving psychotropic medication for his 
PTSD.  In April 2009 he started taking Trazodone 75 milligrams and in August 2010 
venlafaxine 150 milligrams was added (to treat depression).  She stated he had not 
been hospitalized as an inpatient for his mental health or substance abuse 
disorders.  She identified no physical restrictions; however, she stated the 
applicant’s prognosis regarding his PTSD diagnosis was "Guarded."  She stated, 
"Continued engagement in military operations may exacerbate his symptoms leading 
to significantly impaired functioning."  The applicant’s treatment plan included 
continued medication management and its adjustment to maintain symptom stability 
and optimal functioning.  She concluded by stating, "[The applicant] may be unable 
to function to defend himself/others in crisis situation if PTSD symptoms become 
overwhelming." 

27.  On 17 October 2010 the applicant’s unit commander completed a FLARNG form 
indicating the applicant had PTSD, a medical condition that was affecting his abilities 
to perform his soldierly duties.  He stated, "The] Soldier is a MOS qualified medic 
who has issues being around trauma patients."  

28.  Also on 17 October 2010 the applicant completed a FLARNG preprinted form 
stating he had PTSD and that he could not perform his duties during wartime. 

29.  On 3 November 2010, the FLARNG Headquarters, Office of the Surgeon 
General, Medical Readiness Team prepared a request for the State Surgeon's 
Medical Duty Review Board.  The Medical Readiness Team asked for a review of 
the applicant’s medical record for retention, mobilization, and permanent or 
temporary physical profile.  His record was reviewed by two senior field grade 
Medical Corps officers and a physician’s assistant.  These officers determined the 
applicant was not fit for duty and not eligible for mobilization under the provisions of 
Army Regulation 40-501, paragraph 3-33b.  The results of their decision are 
recorded on an overprinted FLARNG Standard Form 600.  They made additional 
remarks indicating a referral to a medical evaluation board/physical evaluation 
board, he was non-deployable and his condition of PTSD was considered in the line 
of duty.

30.  Also on 3 November 2010, the deputy state surgeon informed the applicant’s 
unit commander by memorandum that a State Surgeon’s Medical Duty Review 
Board met and determined the applicant did not meet medical retention standards in 
accordance with Army Regulation 40-501, dated 14 December 2007.  His unit 
commander was advised to inform him he may request referral to a physical 
evaluation board for a determination of fitness for duty under the provisions of 
paragraph 10-25 of Army Regulation 40-501.  The instructions stated the applicant’s 
request must be in writing and submitted to the State Office of the Deputy State 
Surgeon 5 days before his discharge from the FLARNG.  The unit commander was 
informed the written request must include additional supporting medical evidence.  
The memorandum informed the unit commander he "needs to counsel, DA [Form] 
4856 [Statement of Counseling], the Soldier in regards to the board action.  In 
addition, the commander needs to address what the Soldier can do next.  If the 
Soldier does not appeal by the suspense date, the Soldier is approving the decision 
that the medical board members made based on his/her medical condition."  The 
memorandum concludes by stating the applicant is not medically deployable. 

31.  In an undated memorandum the applicant’s commanding officer, Second 
Lieutenant (2LT) JD, in the FLARNG stated, "[The applicant] does not choose to 
appeal the board’s [State Surgeon’s Medical Duty Review Board] decision."  The 
commander further requested a date of separation for the applicant.  (This document 
was provided by the government medical advisor on 3 November 2019.  It shows 
this document was provided to the applicant and a copy is filed in his State 
Surgeon’s Medical Duty Review Board files.) 

32.  On 11 March 2011 he extended his enlistment in the FLARNG for 1 year which 
established his new expiration of term of service date to 13 March 2012.  A 
commissioned officer prepared and executed the oath of extension as recorded on 
DA Form 4836 (Oath of Extension of Enlistment or Reenlistment).  By extending his 
enlistment, he and the officer administering the oath of enlistment affirmed he met 
the medical qualification standards for extending his enlistment in the U.S. Army as 
per Army Regulation 40-501.  There are no documents showing he required a 
medical waiver to extend his enlistment.

33.  On 11 April 2011 the applicant's FLARNG unit issued a memorandum for record 
stating the applicant’s record did not contain a line of duty determination (for PTSD) 
and that it was requesting one from higher headquarters.  

34.  On 12 April 2011 the applicant’s unit commander, 2LT JD, prepared and signed 
a DA Form 2173 (Statement of Medical Examination and Duty Status).  This form 
shows:

*	item 5 (Accident Information) – 25 September 2007 at 0800 hours in Bagdad, 
Iraq
*	item 6 (Individual was) – out patient
*	item 7 (Name of Hospital or Treatment Facility) – VA Jacksonville, Florida
*	item 9 (Hour and Date Examined) – 23 February 2008 at 1000 hours
*	item 11 (Medical Opinion) – he had readjustment issues upon returning home 
from Operation Iraqi Freedom; he was diagnosed by the VA with PTSD  

35.  On 28 April 2011 the NGB issued a memorandum to the FLARNG stating it had 
approved the applicant’s line of duty determination occurring during Operation Iraqi 
Freedom.  The medical condition was PTSD.  (A copy of his DA Form 2173 and 
associated approval documents are not filed in his military personnel record.  
However, a copy was provided by the government medical advisor on 3 November 
2019 and is included as evidence of record.)

36.  On 23 June 2011, the FLARNG issued Orders 174-022 honorably discharging 
the applicant from the ARNG assigning him to the Retired Reserve effective 22 June 
2011.  The orders state he was discharged due to not meeting medical retention 
standards by the State Surgeon’s Medical Duty Review Board.  He was separated 
under the provisions of NGB regulations. 

37.  Concurrent with the issuance of his discharge/retirement order the FLARNG 
completed NBG Form 22 (Report of Separation and Record of Service) documenting 
his discharge effective 22 June 2011 and subsequent transfer to the U.S. Army 
Reserve (USAR) Retired Reserve.  He was born in August 1971.  He completed a 
total of 18 years, 11 months and 14 days total service for nonregular retired pay.  
The authority and reason for this action were National Guard Regulation (NGR) 600-
200 (Enlisted Personnel Management), paragraph 6-36c.  Filed in his electronic 
personnel record is an ARNG Current Annual Statement showing the highest grade 
held was staff sergeant/E-6 and he had completed 18 years, 11 months and 14 days 
of total service for nonregular retired pay.  

38.  On 24 June 2011, the FLARNG issued the applicant a 15-Year Letter, 
Notification of Eligibility for Retired Pay at Age 60 under the provisions of Title 10, 
USC, section 12731b (Physical disability not incurred in the line of duty).  This letter 
authorizes him to apply for full retired pay [100 percent] at age 60 in the year 2031.  
Additional instructions state he would not be entitled to retired pay under this law if 
he was now or later became entitled to retired pay from an armed force under any 
other provision of law.  

39.  On 19 December 2011, the Under Secretary of Defense published Directive-
Type Memorandum (DTM) 11-015 (Integrated Disability Evaluation System (IDES).  
This DTM applied to the Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chief of Staff and all 
organizational entities with the Department of Defense (DoD).  It established the 
IDES providing direct guidance to the Military Departments.  As of the date of the 
DTM all newly initiated, duty-related physical disability cases will be processed in 
accordance with this DTM following the processes outlined in the DTM.  The IDES is 
a joint 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 the VA 
determine the appropriate benefits for service members who are separated or retired 
by a service connected disability. 

40.  On 5 August 2014 the DoD reissued Instruction Number 1332.18 (Disability 
Evaluation System) stating it was DoD policy that the disability evaluation system 
would be the mechanism for determining return to duty, separation, or retirement of 
service members because of disability.  Service members would be processed 
through one of three systems:  the Legacy Disability Evaluation System, the IDES, 
or the Expedited Disability Evaluation System.  The DoD objective in all disability 
evaluation processes was to collaborate with the VA to ensure continuity of care, 
timely processing, and seamless transition of service members from DoD to VA in 
cases of disability separation or retirement.  Under the supervision of the Secretary 
of the Military Department concerned, the disability evaluation process consists of:

     a.  Medical evaluation to include the medical evaluation board, impartial medical 
reviews, and rebuttal.  This board documents the medical status and duty limitations 
of service members who meet referral eligibility criteria.  This board is composed of 
two or more physicians (civilian employees or military).  One of the physicians must 
have detailed knowledge of the standards pertaining to medical fitness, the 
disposition of patients, and disability separation processing.  For this board, any 
listing of a behavioral health diagnosis must contain a thorough behavioral health 
evaluation and include the signature of at least one psychiatrist or psychologist with 
a doctorate in psychology.  If the service member cannot perform the duties of their 
office, grade, rank, or rating, the medical evaluation board refers the case to the 
physical evaluation board.

     b.  Disability evaluation to include the physical evaluation board and appellate 
reviews, and rebuttal.  This board determines the fitness of service members with 
medical conditions to perform their military duties and, for members determined to 
be unfit because of duty-related impairments, their eligibility for benefits pursuant to 
chapter 61 of the Code of Federal Regulations.  The informal board is composed of 
at least two military personnel at field grade or civilian equivalent or higher rank or 
grade.  A formal board must be composed of at least three members and may be 
comprised of military and civilian personnel representatives.  A majority of the 
members must not have participated in a service member’s previous medical 
adjudication process.  The members of this board will consist of a president (military 
officer O-6) or civilian equivalent, a medical officer, and a line officer familiar with 
duty assignments.  The physician must not have participated in any of the previous 
medical evaluations or boards pertaining to the applicant.  For Reserve Component 
members, a Reserve representative will sit on the board.  

     c.  The Secretary of the Military Department concerned must cite objective 
evidence in the record, as distinguished from personal opinions, speculation, or 
conjecture, to determine a service member is unfit because of disability.  
Additionally, the Secretary has the authority to make all determinations in 
accordance with this instruction regarding unfitness, disability percentage, and 
entitlement to disability severance pay and retired pay. 

     d.  In determining whether a service member can reasonably perform his or her 
duties includes consideration of the following:

*	common military tasks required of service member’s office, grade, or rank 
such as firing a weapon, performing field duty, or wearing load-bearing 
equipment
*	physical fitness test 
*	deployability with the standard being uniformly applied to Active 
Component and Reserve Component
*	special qualifications to include considering alternate branch or specialty, 
or reclassification or reassignment 

41.  On 8 February 2015 the VA notified the applicant by letter it increased his PTSD 
percentage of disability to 50 percent.  This letter stated as of its date the overall 
evidentiary record shows the severity of his disability most closely approximates the 
criteria for a 50 percent disability evaluation.  It went on to explain why a higher 
percentage was not warranted. 

42.  On 12 September 2015 the applicant applied to the ABCMR requesting a 
correction to his record to show his PTSD was incurred in the line of duty with 
entitlement to disability retired pay and associated benefits based on a PTSD 
diagnosis from the VA of 30 percent disabling rating in 2008.  He did not recall being 
counselled that he was eligible for retired pay earlier than age 60 due to his PTSD 
diagnosis.  The applicant’s application was assigned Army Docket Number 
AR20150015620.

43.  In processing his 2015 application to the ABCMR, it was determined by the staff 
of the Board that an advisory opinion was required.  A request for an advisory was 
submitted to the NGB.  On 13 and 26 September 2016, the NGB responded by two 
separate memorandums.  The advisories recommended approval of the applicant’s 
request in so far as they recommended he undergo a medical evaluation 
board/physical evaluation board.  

     a.  In its discussion it stated the FLARNG State Surgeon’s Medical Duty Review 
Board determined he did not meet medical retention standards.  It stated, 
"Additionally, [the applicant] was eligible to request referral to a Physical Evaluation 
Board (PEB), as well as receive counseling in regards to his available options, which 
did not occur."  

     b.  On 24 June 2011 the applicant was notified he was eligible for retired pay at 
age 60 by issuance of a 15-Year Letter under the provisions of Title 10, USC, 
section 1271b.  He was discharged from the FLARNG and transferred to the Retired 
Reserve.

     c.  The advisory official, a Department of the Army Civilian serving as the Deputy 
Chief, Personnel and Policy Division, opined the applicant could be provided with 
invitational travel orders to the nearest medical treatment facility in order to undergo 
a medical evaluation board/physical evaluation board.  If he was found unfit for duty, 
he should be medically retired with entitlement to back pay and benefits effective 
22 June 2011. 

44.  The FLARNG provided input to the National Guard Bureau.  A sergeant major 
responded via email stating the applicant had a permanent physical profile of "3" for 
the profile psychological factor based on his diagnosis of PTSD.  His PTSD was 
incurred in the line of duty.  Since he had a permanent profile incurred in the line of 
duty, a packet should have been sent to a medical evaluation board for a medical 
determination.  The sergeant major opined, "The Soldier was erroneously 
discharged and should have been given the opportunity to go through the medical 
board process."

45.  The NGB, ARNG Office of the Surgeon also provided input to the advisory.  The 
advisory officer is a lieutenant colonel serving as the Chief, Clinical Operations.  By 
email he stated the applicant meets the criteria for a medical evaluation board.  He 
opined from the available paperwork, "This Soldier met the criteria for a [medical 
evaluation board] his case should have been automatically forwarded unless the 
Soldier did not want the [medical evaluation board].  There is no documentary 
evidence that this sort of counseling occurred."  He further opines, "This could be a 
clear cut case where the State did not provide the Soldier due process or a case 
where the Soldier actively sought retirement instead of the [medical evaluation 
board] process and now regrets his decision." 

46.  The applicant was mailed a copy of the aforementioned advisory on 
22 September 2016.  There is no evidence he responded to it.  

47.  The ABCMR met on 23 February 2017 and rendered a decision for Army 
Docket Number AR20150015620.  After reviewing the facts of the case, the 
available medical and personnel records plus the applicant’s evidence, the ABCMR 
granted partial relief by recommending to the Secretary of the Army or his 
designated representative that the applicant’s record be forwarded to the Office of 
the Surgeon General for review to determine if his file should be referred to a 
physical evaluation board.  If the Office of the Surgeon General makes a 
determination warranting the applicant’s separation under the provisions of the 
physical disability evaluation system, then the case proceedings would act as the 
authoritative document to correct his record.  The ABCMR denied changing his 
discharge from the FLARNG to medical retirement with its associated benefits.  

[The U.S. Army Physical Disability Agency is responsible for 
administering the 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 (Disability Evaluation System (DES)) and Army 
Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation).]

48.  On 5 April 2017 the Integrated Disability Evaluation System Director at the Fort 
Belvoir Community Hospital Medical Evaluation Board, part of the Defense Health 
Agency within the Department of Defense, rendered a written decision in compliance 
with the instructions of Army Docket Number AR20150015620.  She addressed the 
letter to the applicant.  (The case was processed through the Office of the Surgeon 
General to the Fort Belvoir Community Hospital Medical Evaluation Board.)  The 
director is a licensed osteopathic physician credentialed to practice medicine for the 
Department of Defense.  She reviewed the following evidence:

*	Army Docket Number AR20150015620, dated 28 February 2017
*	NGB opinion on the applicant’s line of duty, dated 13 September 2016
*	Line of Duty (PTSD), dated 28 April 2011
*	DD Form 2808 (Report of Medical Examination), dated April 2017
*	DD Form 2807 (Report of Medical History), dated April 2017
*	military service treatment records for the period from 13 July 2006 to 9 April 
2008
*	VA medical records

49.  Upon her review, she found insufficient evidence to support referring the 
applicant to a medical evaluation board/physical evaluation board.  She states there 
are no military service treatment records documenting a diagnosis or treatment for 
PTSD.  While on active duty the applicant was diagnosed with adjustment order with 
anxious mood on 26 October 2007 which was days prior to his release from active 
duty.  He self-reported during a military flight physical on 9 April 2008 that he filed a 
claim with the VA.  However, there is nothing in his military medical records noting 
he had physical limitations or a restricting profile for the psychological factor while on 
active duty.  

     a.  The applicant was diagnosed by the VA with PTSD rated at 30 percent in 
2008 and increased to 50 percent in 2009.  The advisory does recognize this 
diagnosis. 

     b.  The applicant did not return to active duty service prior to his 2011 discharge 
from the FLARNG.  During the years 2009, 2010, and 2011 he performed his 
required monthly drills with his FLARNG unit.

     c.  Reviewing his VA medical records he was responsive to medical treatment 
and his sleep patterns were showing improvement.  Mental status exam notes 
showed his nightmares were rescinding, he had no functional limitations, and he was 
responsive to medication management.  These records also show he remained in 
law school graduating in May 2011 and at the time was preparing for his bar 
examinations.  

     d.  A review of his NCOERs from 2008 through 2010 shows he received 
excellent, success or fully capable ratings.  It was noted he was rated as among the 
best by senior raters.  His evaluations provide no indication his diagnosis of PTSD 
interfered with his performance as a Soldier during his active duty training periods.

     e.  The applicant demonstrated he was functional and capable of attending and 
completing law school in addition to attending his required ARNG drill assemblies.  
Based on her assessment, there is insufficient evidence supporting the applicant 
had functional limitations warranting a referral to a medical evaluation board in 2011.  
It is her medical opinion the applicant did not fail to meet the medical retention 
standards of Army Regulation 40-501 identified in chapter 3. 

50.  On 9 January 2019 by memorandum the NGB informed ARBA it had taken the 
necessary administrative action to comply with the instructions of Army Docket 
Number AR20150015620.  The Chief, Special Actions Branch forwarded the 5 April 
2017 letter from the Fort Belvoir Community Hospital Medical Evaluation Board 
Director, a doctor, to ARBA.  The memorandum restated the doctor’s findings that 
there was insufficient evidence to support referring the applicant to a medical 
evaluation board.  Based on the doctor’s findings, the correction action required by 
the aforementioned record of proceedings and its determination were completed.  
The NGB representative further directed the filing of the case documents in the 
applicant’s electronic military personnel record.  

51.  The majority of the evidence the applicant submitted was previously presented 
in this record of proceedings and is filed within his electronic military personnel 
record under Army Docket Number AR20150015620 or separately according to 
Army records management instructions.  He provided his personal copy of 
documents filed in his Army Military Human Resource Record which includes his 
electronic personnel record totaling 301 pages.  Additionally, he provided a copy of 
his electronic service treatment medical records totaling 126 pages certified by the 
Fort Belvoir Community Hospital Medical Records Custodian.  
52.  In the processing of this court remand, a medical advisory was obtained from a 
Medical Services Corps officer who is a senior grade commissioned officer, a 
colonel/O-6, who holds a Doctorate of Psychology.  This advisory is dated 21 May 
2019.  At the time, the advisory official was on temporary duty to the Army Review 
Boards Agency behavioral health staff assisting with providing behavioral health 
advisories for various boards with the Agency including the ABCMR.  

     a.  The advisory restated the intent of the court remand as written in the court 
order dated 3 May 2019 and previously outlined in this record of proceedings.  The 
advisory official outlines his credentials stating he has 25 years of experience in the 
Regular Army.  Within the limits of his credentials, he has diagnosed many patients 
with PTSD and is therefore very familiar with the requirements for diagnosing PTSD 
based on the criterion identified in the Diagnostic and Statistical Manual of Mental 
Disorders (DSM).  Additionally, this advisory official has credit for multiple 
deployments including two to Iraq in 2003 and again in 2006.  In 2006, he was the 
chief of mental health for a military combat division located at Balad, Iraq.  Balad had 
a combat support hospital, multiple forward support surgical teams, multiple medical 
clinics, and there were multiple behavioral health clinics available to personnel.  

     b.  The advisory reviews the applicant’s active duty electronic medical and 
personnel records during his period of active service from 2006 to early 2008. 

          (1) During the applicant’s deployment he never presented himself to any 
theater behavioral health clinic subsequent to any behavioral health trauma or any 
other typical behavioral health issues (e.g. relationship, financial, operational stress, 
etc.)  He never conveyed to a medical provider he was experiencing behavioral 
health issues or symptoms.  He sought medical support and/or treatment on 
10 occasions for hearing tests, an elbow sprain and a recurring rash on his 
forehead. 

          (2) During his redeployment there were 13 entries made in his electronic 
medical record for various health issues with no record of behavioral health 
symptoms.  These entries were for required post deployment medical screenings 
prior to releasing a Soldier from active duty.  During the period from 9 September to 
5 November 2007 while at Fort Benning, Georgia he did not seek treatment for any 
behavioral health symptoms for PTSD, an anxiety disorder, or any other behavioral 
health condition. 

          (3) As required, he underwent a dental examination upon redeployment.  The 
dentist said based on his observation he grinded his teeth, he might be experiencing 
stress.  On 26 October 20007 he had a behavioral health appointment based on the 
dentist’s recommendation.  He told the behavioral health specialist his worst 
experience while deployed was when a truck hit an improvised explosive device 
causing many casualties.  He also reported Balad often received mortar attacks and 
rockets from enemy forces or insurgents.  He underwent a mental status evaluation 
which was within the normal limits.  He was diagnosed with adjustment disorder with 
depressed mood.  He was cleared for demobilization with a recommendation to seek 
assistance from the VA post deactivation.  

          (4)  He received the Air Medal for his service as a flight medic while deployed 
to Iraq in 2007.

    c.  The advisory reviews the applicant’s inactive duty electronic medical and 
personnel records post deployment and deactivation when he was a member of the 
FLARNG.

          (1)  On 7 November 2009 he underwent a required flight physical wherein he 
reported to military medical personnel he filed a claim for PTSD with the VA.  During 
the examination he did not report any PTSD symptoms.  

          (2)  His NCOERs were reviewed wherein there were no reported issues with 
his duty performance that could be attributed to PTSD symptoms.  He attended an 
NCO basic leadership course wherein he achieved course standards.  The advisory 
states the applicant did not present with performance impairing behavioral health 
symptoms and his duty performance showed no deviation from pre -deployment, 
deployment, and post deployment periods of service.  These records are 
independent data validating the applicant’s duty performance did not change after 
exposure to a combat environment.

     d.  The advisory states there is no data from any source while he was on active 
duty showing he experienced a traumatic behavioral health event.  In order for a 
behavioral health provider to diagnosis PTSD, the requirement as defined in the 
DSM-V (Fifth Edition) requires a person to be exposed to death, threatened with 
death, actual or threatened serious injury, or actual or threatened sexual violence by 
direct exposure, witnessing the trauma or learning a family member or close friend 
was exposed to trauma.  There can be indirect exposure to aversive details of 
trauma normally occurring in the course of professional duties.  (The evidence of 
record shows the applicant served as a flight medic while deployed to Iraq 
supporting the 82nd Airborne Division.)

     e.  The advisory defines the eight DSM-V criterion for PTSD concluding the 
applicant did not meet the criterion while mobilized on active duty or after returning 
from Iraq.  (The eight criterion are defined in detail in Army Docket Number 
AR20150015620.)  As he was at Balad during the same time as the applicant, the 
advisory official states Balad was a large base and it received incoming fire daily 
with explosions being heard throughout the base.  The official states, "As a medic, 
[the Applicant’s] job by definition is to care for injured and dying Soldiers." 

     f.  He states the diagnosis of PTSD does not indicate a Soldier does not meet the 
medical retention standards of Army Regulation 40-501, chapter 3.  The central 
issue is whether or not the presence of PTSD affects his or her ability to perform 
their military duties and carry out their responsibilities.  If there was impairment, was 
the required evidenced based treatment protocol for PTSD followed and was it 
successful?  Evidenced based treatment includes cognitive processing 
theory/therapy, prolonged exposure, eye movement desensitization and 
reprocessing therapy, and psychotropic medication.  Treatment modalities can 
include inpatient hospitalization, partial hospitalization, intensive outpatient 
treatment, outpatient treatment, and alcohol/substance abuse treatment and 
medication management.  From his review of the evidence the applicant was not 
treated via any evidence based treatment protocol for PTSD.  Each protocol is 
12 weeks with patients requiring two or three sessions before the patient no longer 
meets the criterion for PTSD.  PTSD is a curable disorder.  Prior to a 
recommendation for a medical evaluation board or a physical evaluation board, a 
Soldier must meet the medical retention determination point meaning the Soldier is 
not responding to treatment and the medical providers can do nothing more for the 
Soldier.  When the medical retention determination point is met, then the Soldier no 
longer meets regulatory medical retention standards and enters the disability 
evaluation system.  From his review of the applicant’s VA medical records, there is 
no evidence showing he received the appropriate PTSD protocol treatment by the 
VA.  If PTSD treatment was successful, the applicant should have been retained and 
continued his service in the FLARNG.  If medical treatment was unsuccessful, then 
he should have entered the physical disability evaluation system. 

     g.  Notwithstanding the previous discussion, the advisory opines the applicant did 
not meet U.S. Army medical retention requirements for PTSD (based solely on the 
VA diagnosis) in accordance with Army Regulation 40-501, chapter 3 when he was 
separated from the FLARNG on 22 June 2011.

     h.  The advisory continues by discussing the applicant’s line of duty status for 
PTSD.  As the evidence of record shows, the applicant was granted an “in line of 
duty” status for PTSD on 28 April 2011 by the NGB.  However, during its processing 
the FLARNG initially processed the applicant in accordance with regulations 
governing "not in line of duty" determinations in 2009.  The advisory outlines in detail 
the regulatory guidance that the FLARNG should have used when reviewing the 
applicant’s medical records from the VA.  He concludes this portion of the advisory 
by stating the applicant should have been adjudicated by a medical evaluation board 
once the FLARNG determined the applicant no longer met medical retention 
standards (in 2011). 

     i.  The advisory official opines he is dismayed at the treatment the applicant, a 
combat veteran, received while a member of the FLARNG.  He opines, "Significant 
harm has been committed upon [the Applicant] through multiple errors of 
competency and possible errors of integrity in adjudicating what should have been a 
rather straight forward [medical evaluation board/physical evaluation board] case."  
He then finds fault with the Defense Health Agency letter to the applicant dated 
5 April 2017 which was rendered upon the direction of the ABCMR in Docket 
Number AR20150015620.  He opines the (U.S Army) Office of the Surgeon General 
should have directed the establishment of a medical evaluation board charged with 
boarding the applicant’s condition of PTSD not simply a review of his records by a 
medical evaluation board physician.  He states, in effect, the medical provider who 
reviewed the applicant’s records appears to have "conducted her own [medical 
evaluation board/physical evaluation board] determination and concluded [the 
Applicant] did not deserve any compensation." 

    j.  He provides ideas and recommendations to the court.  

          (1)  First, the court should stop the FLARNG from conducting an investigation 
into determining if the applicant’s PTSD diagnosis was in the line of duty.  (It 
appears the advisory official writing in 2019 did not know the NGB made a 
determination of in line of duty status in 2011 for the applicant’s PTSD condition.)  
He also discredits the capabilities and duty performance of the State of Florida, 
Deputy Surgeon General.  

          (2)  A medical evaluation board and subsequent physical evaluation board 
may not find the applicant fails medical retention standards.  These boards could 
find the applicant fit for duty or unfit and provide no or minimal compensation due to 
lack of evidenced based treatment for PTSD.  

          (3)  He recommends placing the applicant on "full active duty status retro-
active to 03FEB09 [3 February 2009] (the date the unit documented that [the 
Applicant] did not meet medical retention standards of fitness) through the present.”  
He opines the applicant needs approximately 7 years active duty service added to 
his service record so he can obtain "full retirement" with 20 years of active service 
and its associated benefits.  (It appears this advisory official is not aware the 
applicant is currently entitled to “full retirement benefits” upon attaining age 60 based 
on publication of FLARNG Order 174-022, dated 3 June 2011, and his notification of 
eligibility for retired pay at age 60 memorandum also known as the Selected 
Reserve 15-Year Letter, dated 24 June 2011.  This order cites Title 10, U.S. Code, 
section 12731b as the applicable statute authorizing him retired pay including the 
statement, "You will not be entitled to retired pay under this law, if you are now or 
later become entitled to retired pay… under any other provision of law.") 

          (4)  His second recommendation is for the court to return the applicant to his 
active Reserve status with "full retro-active retirement points for his monthly 
weekend drills and his 2-week annual training."  Upon attaining sufficient length of 
service for non-regular retirement at 20 years of Reserve service, he should retire 
receiving full retirement benefits.

          (5)  His third recommendation is for the court to order a medical evaluation 
board and physical evaluation board retroactive to 3 February 2009.  He opines this 
date is the date the FLARNG acknowledged the applicant did not meet medical 
retention standards based on his VA diagnosis of PTSD.  His concern with this 
recommendation is the applicant who was released from active duty in January 
2008, did not meet the medical criterion for diagnosing PTSD thus medical boards 
were not required.  He concludes by stating he does not recommend this specific 
course of action. 

53.  On 30 July 2019, counsel for the applicant submitted a rebuttal statement or 
legal brief to the 21 May 2019 Army Review Boards Agency medical advisory.  He 
requested, in effect, a personal appearance hearing before the Board to present oral 
arguments.  He then summarizes the applicant’s honorable service in the Regular 
Army and FLARNG.  He restates his position that the applicant was erroneously 
released from the FLARNG without the benefit of entry into the physical disability 
evaluation system.  He states the applicant "has been forced to fight for nearly 
10 years to obtain the benefits to which he is entitled to by law."  This is an injustice 
with the only reasonable outcome is a records correction to show he was medically 
retired.  With this correction he will receive his entitled benefits.  Therefore, he 
recommends the ABCMR and court adopt the primary recommendations of the 
advisory dated 21 May 2019.

     a.  The applicant received a PTSD diagnosis from the VA post deployment in 
2008.  He acknowledges the evidence of record shows an in line of duty 
determination was made by the NGB for the applicant’s PTSD in 2011.  However, 
the FLARNG initially processed the applicant for separation as if his PTSD was not 
in the line of duty in 2009.  (The NGB rendered a line of duty determination for his 
PTSD in 2011.)  By processing his separation from the FLARNG as not in line of 
duty, the applicant did not enter the physical disability evaluation system thus he 
was denied due process through the medical disability evaluation system in 
accordance with Army regulations. 

     b.  From his perspective the evidence of record "leaves no doubt that [the 
Applicant] was discharged because he could no longer perform his functions as a 
combat medic due to PTSD."  The record shows the VA diagnosed the applicant 
with PTSD initially rating him 30 percent in 2008 post deployment and the next year 
in 2009 the VA increased his PTSD disability rating to 50 percent.  Based on the VA 
percentage of disability rating of a minimum of 30 percent, the applicant meets the 
criteria for medical retirement in accordance with Title 10, USC, section 1201.  
(Counsel opines the applicant is unfit for duty based on a VA rating.  The U.S. Army 
Physical Disability Agency and its subordinate medical boards not the VA determine 
fitness for duty or unfitness for duty.  A Soldier with a rating of 30 percent or higher 
for PTSD can be found fit for duty and retained in the U.S Army including its Reserve 
component based on the Soldier’s favorable progression during medical and 
psychological treatment.)

     c.  As he was a combat medic in Iraq, the applicant experienced myriad stressful 
and traumatic situations.  He cites the dentist observation post deployment wherein 
the applicant was experiencing stress because he was grinding his teeth and he had 
shingles while deployed.  He implies shingles was a stress induced reaction to the 
combat environment.  He further quotes from the applicant’s VA medical records, 
"He reported a variety of traumatic stressors… including experiencing 'a mass 
causality situation in which the 82nd [Airborne Division] had a lot of soldiers killed 
and injured during a truck bomb explosion.'"  Additionally, he reported his location 
took mortars and rocket attacks from insurgents. 

     d.  His VA records further show he described numerous, specific traumatic events 
and stressors including witnessing “too many injuries and mangled bodies”; holding 
dying children in his arms; being required to amputate a person’s leg with a 
hacksaw; he was unable to save a patient while receiving fire (presumably enemy 
fire); and, being "bathed in blood" when he returned from the field on numerous 
occasions.  Upon his return from deployment he used alcohol as a sleep aid 
because he was experiencing emotional symptoms, flashbacks and nightmares.  He 
self-reported to his VA practioners he could no longer work in a medical setting 
because he could not be around "blood and guts anymore." 

     e.  Counsel presents arguments with evidence showing the VA treated the 
applicant for PTSD using evidence based practices such as cognitive processing 
therapy, prolonged exposure therapy, and psychotropic medications.  The applicant 
received individual therapy sessions, but the record shows these sessions were 
ineffective.  He lists the various medications prescribed to the applicant by VA 
mental health providers often without attaining successful treatment because the 
medications "made him feel numb and decreased his motivation."  

     f.  He restates in detail how the FLARNG State Surgeons Medical Duty Review 
Board found the applicant failed medical retention standards and then the 
administrative steps taken by the FLARNG leading to his discharge.  (The evidence 
of record shows he was discharged from the ARNGUS and immediately transferred 
to the Retired Reserve, a component of the U.S. Army Reserve, with eligibility to 
receive retired pay and associated benefits at age 60.)  In the 13 September 2016 
advisory to this Board, the NGB opined the FLARNG did not process the applicant’s 
case as "in line of duty”; therefore, he was denied due process because he did not 
enter the disability evaluation system.  Further, he was not properly notified of his 
rights so he could not request entry into the disability evaluation system.  Counsel 
asserts the applicant was not counselled concerning the decision of the state board 
and he did not receive a copy of the FLARNG memorandum from his unit 
commander who stated he had counselled the applicant regarding his rights. 

     g.  On 28 February 2017, the ABCMR denied correcting the applicant’s record to 
show he was medically retired vice honorably transferred to the Retired Reserve.  
The Board sent his records to the Office of the Surgeon General for it to determine if 
he should have been referred to the physical disability evaluation system.  The 
Board also told the Office of the Surgeon General to use its record of proceedings as 
the source document to medically retire the applicant, if it was warranted.  Hence, 
the Fort Belvoir Community Hospital Medical Evaluation Board official rendered a 
decision stating the applicant’s records should not be referred into the physical 
disability evaluation system because the applicant did not fail medical retention 
standards for PTSD.  His records showed he was managing his PTSD through 
counseling and medication.  He was performing his prescribed military duties 
effectively and efficiently based on his attendance record and efficiency reports (thus 
there was no down turn in his duty performance).  The official did acknowledge the 
applicant’s PTSD was service connected.  

     h.  He restates the reasoning and rationale for why the applicant filed a complaint 
with the U.S. Court of Federal Claims.  He further restated the complaint and its 
requested judgments from the U.S. Court of Federal Claims and then the 
instructions to the ABCMR which were previsouly addressed.  He then reiterates the 
statements within the advisory wherein once the VA diagnosed the applicant with 
PTSD and if treatment was unsuccessful, then the FLARNG was required to process 
the applicant into and through the disability evaluation system.  As this did not occur, 
he reiterates the applicant suffered an injustice.  The advisory further questioned the 
authority of the Fort Belvoir Community Hospital Medical Evaluation Board 
representative who rendered a decision upon the directive of the Board in 2017.  
This advisory acknowledges and recognizes the errors committed by numerous 
medical and administrative personnel within the U.S. Army, the FLARNG and the 
applicant’s chain of command. 

     i.  He restates the advisory’s recommendations including reinstating the applicant 
to “full active duty status retro-active to 03FEB09” so the applicant can attain 
“enough active duty service time to ‘guarantee military retirement.’”  The advisory felt 
this was the best option because he did not feel the physical disability evaluation 
system would render a fair fitness determination.  The second recommendation 
provided was to restore the applicant to an active reserve status with full retroactive 
“retirement points for his monthly weekend drills and his 2-week annual training.  
The advisory expressed concerns this recommendations would not fully compensate 
the applicant as “it would not result in the fullest retirement benefits.”  The final 
recommendation was to refer the applicant into the disability evaluation system, but 
the advisory did not fully support this recommendation because it could lead to 
“subject error on the part of the Army.”  He concludes by recommending to the court 
the applicant be retired with full retirement benefits or that his records be corrected 
to show he was medically retired retroactive to his date of transfer to the Retired 
Reserve pursuant to Title 10. U.S. Code, section 1201.

     j.  He restates the applicant is entitled to retirement under the provision of 
Title 10, U.S. Code, section 1201 because the VA determined he was rated 
30 percent for PTSD and then the rating was increased by the VA to 50 percent at a 
later date.  He states, "Although this rating was not assigned by a [physical 
evaluation board], that makes no difference given that the VA uses the same 
Veteran Affairs Schedule for Rating Disabilities (VASRD) rating scale.  Further, a 
PEB is not permitted to assign a lower rating than warranted by the VASRD scale, 
but can only make ‘upward departures from the VASRD guidelines in particular 
cases.’”  (See McHenry v. United States, 367 F.3d 1370, 1378-79 (Fed Cir. 2004).)  
He opines the applicant’s career was disrupted by his PTSD.  He outlines the 
regulatory procedures for the disability evaluation system process including an 
individual should receive a hearing.  From his review of the regulatory guidance, the 
applicant had a right to enter the physical disability evaluation system.  The evidence 
of record shows he was denied this right.   

     k.  He continues his argument the applicant was unfit to perform his duties as a 
military health care specialist because the FLARNG State Surgeon Medical 
Determination Review Board shows he failed medical retention standards.  As a 
result of their determination which was supported by evidence from his chain of 
command, the applicant received a psychological factor rating of "3" meaning he 
required duty limitations.  

     l.  Thus under the provisions of Title 38, Code of Federal Regulations, section 
581.3 the Board’s only option to correct the repeated errors and injustices is to 
correct the applicant’s record by providing his with “full military benefits” retroactively 
providing him with an additional 10 years of active service including associated back 
pay and benefits.  This correction "would adequately compensate [the Applicant] for 
the injustice that he experienced, and would ensure he gets the appropriate medical 
benefits, to which he is entitled.”  The ABCMR has the authority to pay this remedy 
under the provisions of Title 10, U.S. Code, section 1552(c)(1). 

     m.  Counsel concludes his statement by citing the following case law or statutes 
allowing the applicant to obtain reimbursement for the out-of-pocket expenses he 
and his family incurred as a result of not having TRICARE coverage.  He opines the 
ABCMR should instruct TRICARE, a Department of Defense entity, to not deny the 
applicant’s claims for reimbursement as untimely due to his failure to make them 
within one year as required by Title 32, Code of Federal Regulations, 
section 199.8(d):

*	McCord v. United States (128 Fed. Cl. 182, 188 (2018)
*	Title 10, U.S Code, section 1071-1110b
*	Title 32, Code of Federal Regulation, sections 199.3(b)(1), 199.17(a)(6)(i)(c) 

[In v. United States, the Court agreed the applicant based upon 
a correction of his record to show he was medically retired with a 
30 percent disability rating vice medically separated with a 20 percent 
disability rating, found he was eligible for a "pecuniary benefit" is "a 
benefit capable or monetary valuation” when he provided evidence to 
show payment of insurance premiums after he was separated.  The 
Court found in his favor for payment of funds offsetting the cost of 
TRICARE premiums against private insurance paid premiums.  Upon 
application to TRICARE for payment of medical expenses, the applicable 
TRICARE regulations prescribe an administrative process for 
challenging TRICARE denial of claims.  Thus the Court denied him 
payment of medical expenses albeit without processing through 
TRICARE.]

54.  In the processing of this court remand, a second medical advisory was obtained 
from the U.S. Army Physical Disability Agency, Dwight David Eisenhower Army 
Medical Center at Fort Gordon, Georgia.  The advisory is addressed to 
Headquarters, U.S. Army Physical Disability Agency who is the decision authority on 
behalf of the Secretary of the Army for rendering determinations under the 
provisions of Title 10, USC, chapter 61.  The advisory is dated 3 November 2019.  
The advisor was asked to determine if the applicant meet medical retention 
standards at the time of separation and if he should be processed through the DES.  
Upon review of the applicant’s electronic medical service treatment medical records, 
his VA electronic medical records under the Joint Legacy Viewer and the case file, 
he opined the applicant did not fail medical retention standards.  As such, the 
applicant does not require processing through the DES.  

     a.  The applicant did not have persistent or recurrent symptoms necessitating 
limitations of duty or duty in a protected environment as defined in Army Regulation 
40-501, paragraph 3-3b.  During the period from March 2008 to June 2011 he did 
not require duty limitations nor a protected environment.  

     b.  In January 2008 he was released from active duty after his second 
deployment.  As advised he sought follow on medical treatment at the VA.  
Concurrently, he was processed for disability compensation.  In March 2008, he was 
diagnosed with PTSD.  During the period from March 2008 to his separation from 
the ARNGUS  in June 2011, he continued to attend his monthly military drill 
assemblies and perform annual training with his unit without any limitations.

          (1)  In June 2008, he requested a transfer to the inactive ARNGUS for the 
purpose of attending law school full time.  It was approved for the period from 
August 2008 to August 2009.  He did not attend drill as he was a member of the 
inactive ARNGUS. 

          (2)  In November 2010, he received an annual NCOER for the period ending 
November 2010.  It was a stellar evaluation.  This evaluation shows he:

*	provided exceptional medical care
*	technically competent and proficient in all phases of medical and 
treatment areas
*	exceptional instructor for multiple combat lifesaver classes
*	led by example at all times
*	mentors Soldiers toward excellence both personally and professionally
*	rater stated he was among the best recommending immediate promotion 
ahead of his peer 
*	unlimited potential for positions of higher authority

          (3)  In November 2010 he was awarded the State of Florida Commendation 
Medal for his performance during annual training in the summer of 2010.  Noted in 
the award citation, he displayed excellent adaptability, medical knowledge and 
military skills while performing the duties of a medical health care sergeant 
exceeding the standards of duty performance.  He consistently demonstrated his 
technical abilities and military knowledge while instructing three combat lifesaver 
classes with attendance of 40 Soldiers.  He helped to organize, set up and execute 
the classes.  

     c.  The advisory official reviewed his VA medical records opining his PSTD 
symptoms were demonstratively stable with a marked decrease in his requirement 
for further psychiatric support.  He opined the records confirmed successful 
treatment of PTSD.

          (1)  He was treated by the VA from March 2008 until June 2011 for his 
condition of PTSD. 

          (2)  He met with his psychiatrist three times in March, April and August of 
2008.  He received various medications as well as psychotherapy behavioral health 
counselling sessions.  During this period he was attending law school. 

          (3)  In 2009, he continued to receive treatment from an Advanced Registered 
Nurse Practioner at the VA.  He also continued with psychotherapy three times per 
month in January, February and March.  His psychotherapy was decreased to a 
monthly session in April, May, June and August.  In October 2009, he reported his 
sleep with nightmares had improved and that his mood was better.  He continued 
with law school. 

          (4)  In 2010, he continued with behavioral health treatment only seeing his 
nurse practioner.  His record shows he only had four behavioral health visits in 2010 
in January, March, August and November.  He was no longer attending 
psychotherapy.  His nurse practioner adjusted his medications.  Her notes indicate 
he was significantly improving and was stable.  Comments noted show he stated he 
was sleeping 8 to 9 hours and when he awaked he felt refreshed.  He was not 
currently drinking alcohol.  He remained in law school and was starting preparation 
for the bar examination.  He stated, "It seems like compared to when I started I’m 
handling my stress better and my study habits are better."

          (5)  In 2011, he met once with his VA nurse practioner.  She stated he had 
graduated from law school.  He was sleeping through the night with medication 
(Trazadone) and an orthodontic device.  He was happy and was relocating to the 
State of Pennsylvania where he would reestablish care with the closest VA facility 
upon his relocation.  He reestablished contact with the VA and saw a behavioral 
health specialist once. 

          (6)  During the years 2012 and 2013, there are no VA records showing he 
sought behavioral health treatment for PTSD.

          (7)  In September 2014, he had an initial visit with a VA psychiatrist which was 
documented as a get acquainted visit.  The applicant denied being depressed and 
reported he was seeking medication to manage his attention-deficit/hyperactivity 
disorder.  It was another year before he saw a behavioral health care provider at the 
VA.

      d.  This paragraph will address the events surrounding the applicant’s medical 
profile and subsequent State Surgeon’s Medical Duty Review Board leading to his 
administrative separation.  He opines the process was capricious and flawed.

          (1)  In February 2010 during a periodic health assessment he shared with the 
examiner he was undergoing treatment at the VA.  At the time his duty restrictions 
were recorded on a DA Form 3349 (Physical Profile) showing he received a "3" 
rating for the psychological factor.  This was a temporary profile with an expiration 
date of February 2011.

          (2)  On 14 October 2010 his nurse practioner completed two documents for 
the State Surgeon Medical Duty Review Board.  The forms were titled "Behavioral 
Health Provider Statement" and "Physician Statement."  She noted the applicant’s 
ability to function and deploy to a combat environment was questionable.  She 
stated his prognosis was "guarded."  The advisory official states, "As a [medical 
evaluation board] MEB physician I find this not compelling and evidence that further 
review/investigation is warranted."

          (3)  On 17 October 2010 the applicant’s company commander completed a 
statement indicating he felt the applicant would have issues around trauma patients.  
He opines this is a vague statement.  During this same period, he prepared a State 
award recommendation on behalf of the applicant for his duty performance during 
annual training where he was preparing for wartime operations. 

          (4)  On 3 November 2010 two members of the State of Florida Surgeon’s 
Officer, a major physician’s assistant and a colonel Doctor of Osteopathic Medicine, 
determined the applicant failed retention standards requiring a medical evaluation 
board and a line of determination for PTSD.

          (5)  On 3 November 2010 a lieutenant colonel at the State Surgeon’s Office 
notified the applicant’s commander he failed medical retention standards.  The 
advisory official reached out to the State of Florida confirming the form is a “fillable” 
document such that names and dates can be “plugged in” without a medical official 
seeing or reviewing the case file.  The advisory official questions the integrity of the 
State of Florida’s process and their findings. 

          (6)  On 4 December 2010, the applicant’s company commander prepared a 
memorandum indicating the applicant elected not to appeal the State board’s 
decision.  There is a presumption of administrative regularity in that the company 
commander counseled the applicant and prepared the statement after his 
counseling.  

     e.  This paragraph concerns the applicant’s line of duty determination.  On 
23 February 2011, nearly 3 years after his release from active duty and combat 
service, a line of duty document (DA Form 2173) was initiated for PTSD.  In April 
2011, the final approval decision authority rendered a decision that the applicant’s 
PTSD from an unknown date in 2007 or 2008 occurring in Iraq was considered in 
line of duty.  The advisory opines during this process there was ample time for the 
applicant to formally request a medical evaluation board.   

     f.  The advisory states there is no compelling evidence the applicant failed the 
medical retention standards for a behavioral health condition.  It is true he was being 
treated by the VA for PTSD.  However, it is evident during the 3-year period from 
2008 to 2011 he was responding appropriately to treatment.  There is no evidence 
his behavioral health condition impacted his duty performance as shown by his 
awards and evaluations received during his period of deployment and post 
deployment to his separation date in 2011.  Also during this same period he 
successfully completed law school passing his bar examination.  For the 3-year 
period post separation from the ARNGUS, there is no evidence he required 
behavioral health treatment and when he sought treatment it was for another 
behavioral health condition not related to PTSD or is associated symptoms. 

     g.  In 2010, the applicant’s unit was preparing to mobilize for a deployment to 
Southwest Asia.  It was during the preparation phase his unit leadership was 
assessing who was deployable and available to deploy.  Based on the evidence the 
applicant presented, his unit forwarded his documents to the State.  Two individuals 
of the State determined he was nondeployable issuing him a temporary physical 
profile not to exceed 1 year.  With more than 19 years of service, it is difficult to 
believe the applicant was not aware of his right to appeal the State decision.  The 
advisory offers speculation as to why the applicant did not pursue an appeal.  

     h.  On a final note there is no substantiated evidence showing he was exposed to 
combat duty during his deployment in 2007 because he did not receive the Combat 
Medical Badge or the Combat Action Badge.  The advisory opines the applicant 
should apply for nonregular retirement at age 60 based on his retirement qualifying 
letter.  (At that time he will be eligible for 100 percent of his retired pay based on his 
qualifying point total.) 

     i.  The advisory official is a medical doctor who is also a retired commissioned 
officer, a colonel in the U.S. Army Medical Corps.  He is the senior physician on the 
Eisenhower Army Medical Center Medical Evaluation Board responsible for the 
administrative and medical processing of military personnel through the disability 
evaluation system.  He is a DoD civilian employee and a medical doctor who meets 
the credential requirements of the DoD through its Defense Health Agency.

55.  On 6 December 2019 the applicant’s counsel responded to the 3 November 
2019 medical advisory.  He now requests a personal appearance before the Board 
so he can present oral arguments.  He states the advisory is flawed because he 
opines the advisory falls outside the scope of the remand from the U.S. Court of 
Federal Claims.  He also argues the medical advisor is not a qualified physician.  
Secondly he opines, "If the assertions in the opinion were to be considered, they are 
contradicted by the established evidence of record."  Additionally, he opines the 
medical advisory "attempts to shift the burden of proof to [the Applicant], which is 
patently inappropriate."  Finally, the medical advisory seems to suggest that 
procedural errors occurred in the processing of the applicant’s case (by the 
FLARNG), but that no remedy should be provided to the applicant.  He summarizes 
his opening statement by asserting the applicant met the criteria for full medical 
retirement in 2011 and the "Army" (FLARNG and NGB) failed to provide him with 
proper processing thus denying him his "entitled" retired pay and associated 
benefits.  He concludes by stating the Board should adopt the first NGB advisory 
and medically retire the applicant effective the date of his discharge.   

     a.  He argues the medical advisory must be disregarded because it answers 
questions that no one asked in court documents.  He asserts the question of the 
applicant not meeting medical retention standards was addressed at length in the 
Complaint at the Court.  He argues there is no question the applicant failed medical 
retention standards (as shown by the FLARNG).  He argues what the judge asked 
the Board to determine is was he unfit for duty at the time of his separation from the 
FLARNG?  From his perspective the court’s remand order does not allow the Board 
to address the issue of failing medical retention standards or whether he should be 
processed through the disability evaluation system.   

[Title 10, USC, 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 Physical Disability Evaluation System (PDES) 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 (Disability Evaluation System (DES)) and 
Army Regulation 635-40 (Physical Evaluation for Retention, 
Retirement, or Separation).]

     b.  Citing the U.S. Department of Justice, "Because no competent board has 
made a fitness determination, a fact that is undisputed, we proposed a remand to 
the Army so that the ABCMR can make this necessary determination.” (Emphasis 
added by counsel.)

     c.  He opines the 3 November 2019 advisory official "took it upon himself to act 
as a one-man [medical evaluation board], second guessing the judgments of the 
military professionals who determined that [the Applicant] failed medical retention 
standards based on their direct, contemporaneous interactions with him."  He argues 
this advisory must be disregarded by the Board because it exceeds the scope of the 
remand.  He cites v. United States (26 Cl. Ct. 398, 400 (1992)) "refusing to 
consider an advisory opinion 'which disregarded the limited nature of the remand 
and, therefore, significantly exceeded the scope of the court’s remand order.'"

     d.  He stated the advisory attacks the applicant’s character, honesty and integrity.  
He opines, "Speculative or conjectural attacks on a service member’s character and 
credibility are simply ‘not acceptable.’”  He asks the Board to see Van Cleave v. 
United States (70 Fed. Cl. 674, 679 (2006)) in which it rejected the Board of 
Correction of Naval Records "personal attacks on plaintiff’s character and credibility" 
and found the board inappropriately sought to discredit established facts.  He also 
cites Gifford, "(26 Cl. Ct. at 402-04 (rejecting the board’s findings that sought to 
discredit plaintiff because they were directly contradicted by record evidence.)"

     e.  Notwithstanding the fact the advisory official is a senior member of an Army 
medical evaluation board, a senior retired commissioned officer of the U.S. Army 
Medical Corps and a licensed physician employed by the DoD, counsel states the 
advisory official is not professionally qualified because he is not licensed to treat 
mental health disorders.  He provides evidence to show the advisory official is a 
licensed family physician with no secondary specialties, subspecialties, or 
specialized certifications.  He is licensed to practice medicine in the States of Texas 
and Georgia.  

     f.  He then cites from two DoD memoranda implying the applicant should be 
given liberal consideration based on diagnoses made by a licensed psychiatrist or 
psychologist for mental health conditions that existed during military service.  

          (1)  The first memorandum is dated 25 August 2017 and was issued by the 
Office of the Under Secretary of Defense.  The subject of this memorandum pertains 
to modifying discharges of veterans who have a less than honorable characterization 
of service whose service-connected mental health disorder impeded their ability to 
perform to the acceptable standards of military conduct as defined in the Uniform 
Code of Military Justice.  In fact its addendum states, "These guidance documents 
are not limited to Under Other Than Honorable Condition discharge 
characterizations but rather apply to any petition seeking discharge relief including 
requests to change the narrative reason, re-enlistment codes, and upgrades from 
General to Honorable characterizations."  

          (2)  The second memorandum is dated 25 July 2018 by the Under Secretary 
of Defense and it concerns reviewing military records regarding equity, injustice and 
clemency.  This memorandum also address guidance for veterans who want to 
upgrade their discharge.  It addresses its attention to pardons for criminal 
convictions of service members.      

     g.  He cites Wollman v. United States (116 Fed. Cl. 419, 429 (2014)) wherein the 
Army Physical Disability Review Board "does not have the right to ignore… the 
Army’s previously undisputed medical findings and conclusions."  He opines the 
advisory ignores fundamental facts that the 28 February 2017 ABCMR final decision 
recognized:

*	his separation was due to service-connected PTSD rated by the VA at 
50 percent 
*	the FLARNG State Surgeon’s Medical Determination Review Board found he 
failed medical retention standards
*	he was separated without proper due process "because he was not provided 
with counseling as to his available options; including his right to seek 
[physical evaluation board] review"

     h.  The subject advisory implied the applicant was a member of the Inactive 
National Guard (during the period post deployment), that he was able to complete 
the rigorous requirements for law school, and when recalled to an active status he 
was able to attend and participate in required training; therefore, he was not duty 
limited.   Counsel argues the applicant was a health care specialist and because of 
his PTSD he was not able to perform the duties of a health care specialist providing 
emergency medal treatment to battle and non-battle casualties.  He again cites the 
FLARNG decision to remove him from duty as the only deciding factor.  He then 
restates the evidence he provided with the court remand referenced earlier and 
previously discussed in this record of proceedings.  He opines the established 
record shows the applicant’s duties in a combat environment were potentially limited 
because of his PTSD as noted by his VA medical practioner. 

     i.  He then weighs his argument on the results of the FLARNG State Surgeons 
Medical Determination Review Board and emails between the FLARNG and the 
NGB wherein State and NGB officials opine the applicant did not receive due 
process because after the State Surgeon’s decision, the applicant did not enter the 
Army physical disability evaluation system.  He further opines the applicant was not 
counselled. (This fact is disputed by a memorandum signed by his FLARNG unit 
commander and made available as evidence of record by the aforementioned 
advisory.)  Counsel argues this is not an authenticate document because he does 
not record the counseling the applicant received concerning the State’s decision.  He 
further argues this evidence is not relevant.  From his research, the applicant should 
have automatically entered the physical disability evaluation system.  

     j.  He concludes by restating his position that the advisory of 3 November 2019 
should be disregard in its entirety.  He opines the applicant’s record should be 
corrected to show he was medically retired on 22 June 2011 in compliance with the 
Chapter 32, Code of Federal Regulation, section 581.3 (ABCMR policies and 
procedures).  He further cites Brown v. United States (6Ct. Cl. 171 at 197 (1870)) "a 
decision which pronounces a citizen having a legal right absolutely without legal 
redress is a decision abhorrent to common law."  Additionally, he cites Title 10, USC, 
section 1201 as the Board’s authorization to grant the applicant medical retirement 
with associated pay and benefits.  

[Title 10, USC, 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.  For clarification, a service 
member found unfit for duty and retired at 30 percent will only receive 
30 percent of their retired pay for the duration of their natural life.  If 
retired under this statute, they cannot retire from the U.S. Armed Forces 
under any other statute.]

     k.  He provides the following evidence with his rebuttal opinion:

*	Counsel’s Rebuttal Statement, received on 6 December 2019
*	Counsel Table of Contents
*	Case Number , U.S. Court of Federal Claims, Complaint (second 
submission)
*	Case Number , U.S. Court of Federal Claims, Court Order 
(second submission)
*	Case Number , U.S. Court of Federal Claims, Defendant’s Reply 
to Plaintiff’s Response to Defendant’s Motion for a Voluntary Remand
*	Texas Medical Board, Public Verification/Physician Profile
*	Georgia Licensee Details 
*	Memorandum from Office of the Under Secretary of Defense, dated 
25 August 2007, subject:  Clarifying Guidance to Military Discharge Review 
Boards and Boards for Correction of Military/Naval Records Requests by 
Veterans for Modification of their Discharge Due to Mental Health 
Conditions, Sexual Assault, or Sexual Harassment
*	Memorandum from Under Secretary of Defense, dated 25 July 2018, 
subject: Guidance to Military Discharge Review Boards and Board for 
Correction of Military/Naval Records Regarding Equity, Injustice, or 
Clemency Determinations

BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found 
relief was warranted.

2.  The applicant requests his military records be corrected to reflect he was 
medically retired based on unfitting PTSD.  The Board considered the applicant’s 
contentions and the evidence of record, including the conflicting advisory opinions.  
The evidence reflects the applicant’s PTSD was incurred in the line of duty.  He has 
been assigned a 50 percent disability rating for PTSD by the Department of 
Veterans Affairs (VA).  In February 2009, the FLARNG Deputy State Surgeon 
determined the applicant did not meet medical retention standards.  The Board 
determined that the FLARNG should have referred the applicant into the PDES to 
undergo a MEB/PEB, but failed to do so without adequate explanation.  The Board 
determined an injustice occurred in light of the deprivation of due process.  The 
Board found there was sufficient medical evidence available to render a decision 
regarding the applicant’s fitness at the time of service separation without additional 
processing through PDES – specifically, that the applicant was unfit due to PTSD 
and should have been medically separated from service.  As such, the Board 
determined that a preponderance of the evidence supported granting the requested 
relief and that the applicant’s military records should be corrected to reflect 
placement on the permanent disability retired list (PDRL), effective the date of 
discharge, 22 June 2011, with a 50 percent rating for PTSD.


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 a 
recommendation for relief.  As a result, the Board recommends that all Department 
of the Army records of the individual concerned be corrected to show he was placed 
on the Permanent Disability Retired List with a 50 percent rating for post-traumatic 
stress disorder effective 22 June 2011.  

	  
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, 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 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.  Chapter 32, Code of Federal Regulations, section 581.3 (ABCMR) prescribes the 
policies and procedures for correction of military records by the Secretary of the 
Army, acting through the ABCMR.  It consists of civilians regularly employed in the 
executive part of the Department of the Army who are appointed by the Secretary of 
the Army and serve on the ABCMR as an additional duty.  Three members 
constitute a quorum.  The ABCMR begins its consideration of each case with the 
presumption of administrative regularity.  The applicant has the burden of proving an 
error or an injustice by a preponderance of the evidence.  Applicants do not have a 
right to a hearing before the ABCMR.  The Director or the ABCMR may grant a 
formal hearing whenever justice requires it.  The Army may not pay attorney’s fees 
or other expenses incurred by or on behalf of an applicant in connection with an 
application for correction of military records. 

3  Title 10, U.S. Code (USC), 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 PDES 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 
(Disability Evaluation System (DES)) and Army Regulation 635-40 (Physical 
Evaluation for Retention, Retirement, or Separation).

     a.  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, and provide prompt disability processing while ensuring the rights and 
interests of the government and the Soldier are protected.
	
     b.  Soldiers are referred to the PDES when they no longer meet medical retention 
standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a 
medical evaluation board, when a Soldier receives a permanent medical profile, P3 
or P4, and is referred by an Military Occupational Specialty Medical Retention 
Board, when they are command-referred for a fitness-for-duty medical examination, 
or they are referred by the U.S. Army, Human Resources Command (HRC).

     c.  The PDES assessment process involves two distinct stages:  The medical 
evaluation board and the physical evaluation board.  The purpose of the medical 
evaluation board 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 physical evaluation board 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 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 and length of military service.  

     d.  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 40-501(Standards of Medical Fitness), dated 29 May 2007, 
governs the medical fitness standards for retention and separation including 
retirement.  It provides the standards for administering physical profiles, medical 
examinations and periodic health assessments.  It states, in pertinent part, the State 
Adjutants General will implement policies prescribed in this regulation applicable to 
Reserve Component personnel.  Additionally, commanders and military personnel 
officers as all levels of command will implement administrative and command 
provisions of this regulation. 

     a.  Chapter 3 (Medical Fitness Standards for Retention and Separation, including 
Retirement) provides the various medical conditions and physical defects which 
render a Soldier unfit for further military service.  This chapter is applicable to all 
enlisted Soldiers of the Active Army, ARNG/ARNGUS and the USAR.  

          (1)  Physicians (military) who identify Soldiers with medical conditions listed in 
this chapter should initiate a medical evaluation board at the time of identification.  
Conditions in this chapter fall below retention standards only if the condition has 
precluded or prevented successful performance of duty.  In those cases when it is 
clear the condition is long standing and has not prevented the Soldier from reaching 
retirement, then the Soldier meets the standard and a medical evaluation board is 
not required. 

          (2)  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 identified in this chapter to a 
medical evaluation board.  It is critical that the boards are complete and reflect the 
Soldier’s medical problems and physical limitations.  A physical evaluation board, an 
administrative board, will make a determination of fitness or unfitness.  The physical 
evaluation board, under the authority of the U.S. Army Physical Disability Agency, 
will consider the results of the medical evaluation board, as well as the requirements 
for the Soldier’s military occupational specialty, in determining fitness. 

          (3)  Paragraph 3-31 (Disorders with psychotic features) the causes for referral 
to a medical evaluation board are mental disorders not secondary to intoxication, 
infectious, toxic or other organic causes, with gross impairment in reality testing, 
resulting in interference with social adjustment or with duty performance.  

          (4)  Paragraph 3-32 (Mood disorders) the causes for referral to a medical 
evaluation board include (a) persistent or recurrence of symptoms sufficient to 
require extended or recurrent hospitalization; (b) persistence or recurrence of 
symptoms necessitating limitations of duty or a duty protected environment; or (c) 
persistence or reoccurrence of symptoms resulting in interference with effective 
military performance.

          (5)  Paragraph 3-33 (Anxiety, somatoform or dissociative disorders) the 
causes for referral to a medical evaluation board include (a) persistent or recurrence 
of symptoms sufficient to require extended or recurrent hospitalization; 
(b) persistence or recurrence of symptoms necessitating limitation of duty or a duty 
in protected environment; or (c) persistence or recurrence of symptoms resulting in 
interference with effective military performance.

    b.  The physical profiling serial system is based primarily upon the function of 
body systems and their relation to military duties.  The functions of the various 
organs, systems, and integral parts of the body are considered.  Since the analysis 
of the individual’s medical, physical and mental status plays an important role in 
assignment and welfare, not only must the functional grading be executed with care, 
but clear and accurate descriptions of medical, physical, and mental deviations from 
normal are essential.  One of the factors is S-Psychiatric which concerns personality, 
emotional stability, and psychiatric diseases.  A rating of “3” signifies the Soldier has 
one or more medical conditions or physical defects that may require limitations.   
The individual should receive assignments commensurate with his or her physical 
capability for military duty. 

     c.  There are two types of profiles:  temporary or permanent.  If the profile is 
permanent the profiling officer must assess if the Soldier meets retention standards 
of chapter 3.  Those Soldiers on active duty who do not meet medical retention 
standards must be referred to a medical evaluation board.  For Soldiers not on 
active duty, their disposition is outlined in paragraphs 9-10 and 10-26.  

     d.  Those Soldiers who meet retention standards including members of the 
Reserve Component but have a profile rating of “3” or “4” will be referred to a 
Medical Military Occupational Specialty Retention Board in accordance with Army 
Regulation 600-60 (Physical Performance Evaluation System).  

5.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation), dated 8 February 2006, establishes the Army Physical Disability 
Evaluation System according to the provisions of Title 10, USC, Chapter 61 and 
Department of Defense Directive (DODD) 1332.18.  It sets forth policies, 
responsibilities, and procedures that govern the evaluation for physical fitness of 
Soldiers who may be unfit to perform their military duties of his or her officer, grade, 
rank or rating.  If a Soldier is found unfit because of physical disability, this regulation 
provides for the disposition of the Soldier according to applicable laws and 
regulations.    

     a.  Chapter 3 states 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 member reasonably may be expected to perform because of his or 
her office, rank, grade or rating.

          (1)  A Soldier is presumed to be in sound physical and mental condition upon 
entering active service except for physical disabilities noted and recorded at the time 
of entry.

          (2)  To be eligible for retirement and severance pay, 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.

          (3)  There must be a line of duty determination recorded on a DA Form 2173 
(Statement of Medical Examination and Duty Status) or DD Form 261 (Report of 
Investigation – Line of Duty and Misconduct Status).  It must be approved and filed 
in the Soldier’s record.

     b.  Chapter 4 provides guidance on referring Soldiers for evaluation by a medical 
evaluation board when a question arises as to the Soldier's ability to perform the 
duties of his or her office because of physical disability.

     c.  Evaluations of the performance of duty by supervisors (letters, efficiency 
reports, or personal testimony) may provide better evidence than a clinical estimate 
by the Soldier’s physician describing the physical ability to perform the duties of the 
office, grade, rank, or rating.  Thus, if the evidence establishes the fact that the 
Soldier adequately performed the normal duties of his or her office, grade, rank, or 
rating until the time of referral for physical evaluation, the Soldier might be 
considered fit for duty.  This is true even though medical evidence indicates the 
Soldier’s physical ability to perform such duties may be questionable.

6.  Army Regulation 600-60 covers the physical performance evaluation system and 
it is applicable to all components.  It requires authorities to evaluate Soldier with a 
permanent profile of “3” or “4” to undergo evaluation by a Military Occupational 
Specialty/Medical Retention Board to determine if a Soldier can satisfactorily 
perform their primary specialty or specialty code in a worldwide environment. 

     a.  The Director, Army National Guard will serve as a convening authority with the 
State Adjutants General overseeing the process within their respective State.  Upon 
delegation by the Director, Army National Guard they can serve as the convening 
authority for their State. 

     b.  The medical retention board is an administrative screening process enabling 
continuity of effort among commanders, doctors, personnel managers, and the 
physical disability evaluation system.  The recommendations of this board should be 
based on the Soldier’s physical ability to reasonably perform in their primary 
specialty incorporating reasonable assumptions pertaining to conditions of current 
and potential assignments and deployments.  

     c.  Soldiers will not be referred to this board when their underlying medical 
condition does not meet the medical retention standards of Army Regulation 40-501.

     d. Soldiers are nondeployable effective the date a permanent “3” or “4” profile is 
approved by the applicable medical authority.  The Soldier can be retained, 
reclassified into a new specialty, or enter the physical disability evaluation system.

     e.  Enlisted Soldiers pending this board action may not reenlist.  However, they 
may extend their current enlistment in accordance with applicable regulations.  A 
Soldier referred into the physical disability evaluation system may be retained to 
complete the process.  For National Guard Soldier not serving on active duty, they 
should be processed in accordance with National Guard Regulation 600-200. 
 
     f.  Referral of a Soldier to the physical disability evaluation system for conduct of 
a medical evaluation board and physical evaluation board or for processing for 
medical disqualification under Reserve Component regulations is appropriate 
recommendation when the Soldier’s assignment limitation or medical condition 
precludes satisfactory performance in their respective specialty.  Referral to the 
physical disability evaluation system does not mean the Soldier will be found unfit, or 
if found unfit, will be entitled to military disability compensation.  The criteria for 
determining fitness and eligibility for disability compensation is set forth in 
DoD Instruction 1332.38 and Army Regulation 635-40.  

7.  Army Regulation 635-40 (Personnel Separations – Disability Evaluation for 
Retention, Retirement, or Separation), dated 19 January 2017, superseded Army 
Directive 2012-18 (MOS Administrative Retention Review (MAR2) dated 23 August 
2012.  Chapter 3 (MAR2) implement and establishes policy for the MAR2.  Soldiers 
must be of sufficient medical fitness to satisfactorily perform their primary MOS 
(PMOS) or area of concentration (AOC), as well as those functional activities listed 
on the DA Form 3349 (Physical Profile), which all Soldiers must perform.  Of note, all 
functional activities listed on the DA Form 3349 must be marked “Yes” for the Soldier 
to be eligible for referral to a MAR2.  The MAR2 is an administrative process for 
Soldiers who meet the medical retention standards of Army Regulation 40-501, but 
who nonetheless may not be able to satisfactorily perform the duties of their PMOS 
or AOC in a worldwide field or austere environment because of medical limitations.  
The MAR2 process is used to determine whether a Soldier will be retained in their 
PMOS or AOC or reclassified into another PMOS or AOC.  Soldiers who do not 
meet PMOS or AOC standards and who do not qualify for reclassification will be 
referred into the disability evaluation system.  For referral to a MAR2, the Soldier 
must have been issued a DA Form 3349 with a permanent (P) P3 or P4 in at least 
one of the profile serial factors for a medical condition(s) that meet the medical 
retention standards of Army Regulation 40-501, chapter 3.

8.  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 
less than 30 percent.

9.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award 
compensation for disabilities which were incurred in or aggravated by active military 
service.  Section 4.129 (Mental disorders due to traumatic stress) states when a 
mental disorder that develops in service as a result of a highly stressful event is 
severe enough to bring about the veteran’s release from active military service, the 
rating agency shall assign an evaluation of not less than 50 percent and schedule an 
examination with the 6 month period following the veteran’s discharge to determine 
whether a change in evaluation is warranted. 

10.  VA Schedule for Rating Disabilities (VASRD) Section 4.130 (Diagnostic Code 
and Diagnostic and Statistical Manual of Mental Disorders (DSM-V Nomenclature) 
under the provision of Title 38, U.S. Code, section 155 was updated in 2014 to 
comply with the latest DSM-V edition published by the American Psychiatric 
Association.  The diagnostic code 9411 is for the diagnosis of PTSD.  The general 
rating formula for mental disorders is as follows:

     a.  A rating of 100 percent includes total occupational and social impairment, due 
to such symptoms as: gross impairment in thought processes or communication; 
persistent delusions or hallucinations; grossly inappropriate behavior; persistent 
danger of hurting self or others; intermittent inability to perform activities of daily 
living (including maintenance of minimal personal hygiene); disorientation to time or 
place; memory loss for names of close relatives, own occupation, or own name.

     b.  A rating of 70 percent includes occupational and social impairment, with 
deficiencies in most areas, such as work, school, family relations, judgment, 
thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals 
which interfere with routine activities; speech intermittently illogical, obscure, or 
irrelevant; near-continuous panic or depression affecting the ability to function 
independently, appropriately and effectively; impaired impulse control (such as 
unprovoked irritability with periods of violence); spatial disorientation; neglect of 
personal appearance and hygiene; difficulty in adapting to stressful circumstances 
(including work or a worklike setting); inability to establish and maintain effective 
relationships.

     c.  A rating of 50 percent includes occupational and social impairment with 
reduced reliability and productivity due to such symptoms as: flattened affect; 
circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once 
a week; difficulty in understanding complex commands; impairment of short- and 
long-term memory (e.g., retention of only highly learned material, forgetting to 
complete tasks); impaired judgment; impaired abstract thinking; disturbances of 
motivation and mood; difficulty in establishing and maintaining effective work and 
social relationships.

     d.  A rating of 30 percent includes occupational and social impairment with 
occasional decrease in work efficiency and intermittent periods of inability to perform 
occupational tasks (although generally functioning satisfactorily, with routine 
behavior, self-care, and conversation normal), due to such symptoms as: depressed 
mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep 
impairment, mild memory loss (such as forgetting names, directions, recent events).

     e.  A rating of 10 percent includes occupational and social impairment due to mild 
or transient symptoms which decrease work efficiency and ability to perform 
occupational tasks only during periods of significant stress, or symptoms controlled 
by continuous medication.

     f.  A rating of zero percent shows a mental condition has been formally 
diagnosed, but symptoms are not severe enough either to interfere with occupational 
and social functioning or to require continuous medication.

11.  Title 10, USC, section 1552 states: 

	a.  The Secretary of a military department may correct any military record of the 
Secretary’s department when the Secretary considers it necessary to correct an 
error or remove an injustice.  Except when procured by fraud, a correction under this 
section is final and conclusive on all officers of the United States.  

	b.  No correction may be made under subsection (a)(1) unless the claimant or his 
heir or legal representative files a request for the correction within three years after 
he discovers the error or injustice.  However, a board established under subsection 
(a)(1) may excuse a failure to file within three years after discovery if it finds it to be 
in the interest of justice.  

	c.  The Secretary concerned may pay, from applicable current appropriations, a 
claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary 
benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a 
record under this section, the amount is found to be due the claimant on account of 
his or another’s service in the Army, Navy, Air Force, Marine Corps, or Coast Guard. 

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) 
prescribes the policies and procedures for correction of military records by the 
Secretary of the Army, acting through the ABCMR.  The regulation provides that 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.  Concerning requests for a personal appearance 
hearing, the Director or the Board will make that determination.  (See Chapter 32, 
Code of Federal Regulations, section 581.3.)

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20190006205

37

1