IN THE CASE OF: BOARD DATE: 6 November 2020 DOCKET NUMBER: AR20200001995 APPLICANT REQUESTS: correction of his record and narrative reason for separation to show he was placed on the Temporary Disability Retired List (TDRL) or Permanent Disability Retired List (PDRL). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 25 September 1997 * memorandum, U.S. Army Human Resources Command, dated 29 September 2005 * Orders, 81st Regional Readiness Command, dated 25 November 2003 * VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits), dated 5 March 2010 * Rating Decision, United States Department of Veterans Affairs (VA), Nashville Regional Office, dated 11 May 2012 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, he recently discovered his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) should reflect his placement on the TDRL or PDRL for his military service. He contends he received a VA service connected disability rating of 50% after his active duty period of service from 1982 to 1997 and United States Army Reserve from 1998 to 1995. He believes the VA should have notified the Army of his disability rating for a duty determination of fit, unfit, return to duty, or separation from service. a. The VA notification must have fallen through the cracks but if the disability file would have been forwarded he contends he would have been placed on the disability list and would not be subjected to his current level of stress. b. He contends since he received his disability rating his quality of life has diminished considerably and he desires to continue the remainder of his life, although he has been diagnosed with significant medical issues, which led to his resignation from his job with "USPS." * Diabetes Mellitus Type 2 * Fracture of Left Hip * Gunshot Wound Left Foot * VA 10% Disability for active duty injury c. In 2004 he was ordered to active duty for a period of approximately 18 months when the aforementioned medical issues arose. A mobilization processing medical personnel [nurse] informed him he would not be traveling with his unit because there were not sufficient medical facilities to accommodate his medical issues. 3. On 8 September 1982, the applicant enlisted in the Regular Army (RA). 4. Orders Headquarters, I Corps and Fort Lewis, dated 15 April 1997, shows the applicant was discharged from the Regular Army and an amendment for his additional instructions shows he was reassigned to "175 CS CO (-) (WTLRA1),13000 JACKSON BLVD, FT JACKSON, SC 29207." He was ordered to contact Army Career and Alumni Program (ACAP) for the scheduling of transitional counseling. 5. On 25 September 1997, the applicant was honorably released from active duty under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service. His DD Form 214 shows: * item 12c (Net Active Service This Period) – 15 years, 0 month, and 18 days * block 12f (Foreign Service) – "0002 06 10" * block 18 (Remarks) – shows * "IMMEDIATE REENLISTMENTS THIS PERIOD – 19820908 – 19880530, 19880531 – 19910617, 19910619 -19970925" * "SEPARATION PAY – $31163.40" 6. The applicant's record is void of a preseparation counseling checklist or separation physical for his active duty service period. 7. His Personnel Qualification Record shows: * Overseas Service – EURA/GERMANY * Army Physical Fitness Test (APFT) Date Pass/Fail – "P – 19980516" * Last Physical Exam – "19910810" * Civilian Occupation/Job Title – USPS * Reserve Component Data/Service Obligation Expiration Date – "20000925" * Effective "19970926" he was assigned as "United States Army Reserve (USAR) Ready" 8. A review of the applicant's record shows while assigned to his USAR unit of assignment a physical examination for deployment was conducted, which shows an entry for arthritis, lower back pain, and VA 10% disability. The Physical/Dental examination results shows he was physically fit for retention under the provisions of Army Regulation 40-501 (Standards of Medical Fitness) and no documented limitations at the time of the examination(s). The following documents were available for review: * DD Form 2808 (Report of Medical Examination) * DD Form 2807-1 (Report of Medical History) * Examination Checklist or Narrative * Laboratory Information * Electrocardiography (ECG or EKG) 9. Orders, 81st Regional Readiness Command, dated November shows the applicant was ordered to active duty for a period of 545 days as a member of his USAR unit (175 CS CO (-) (WTLRA1)) for an Iraqi Freedom mobilization. 10. Orders, 81st Regional Readiness Command, dated December, revoked Orders. 11. On 29 September 2005, he applicant received a "Twenty Year Letter" notifying him of his eligibility for retired pay at age 60. 12. The applicant's record is void of evidence that shows a request, recommendation or a determination that he was medically unfit, or that shows he was referred for processing through the Army's Physical Disability Evaluation System (PDES) prior to his release from military service (RA or USAR). 13. The applicant provides copies of VA Regional Office service connected disability compensation records and a VA Request for Employment Information in Connection with Claim for Disability Benefits to support his request for records correction after a VA service connected disability rating. a. His VA final disability rating of 70% and the decision for unemployability shows: * Degenerative Changes, Low Back, Service Connected, Peacetime, 40% Rating * Anxiety Disorder associated with, Degenerative Changes, Low Back, Service Connected, Gulf War, 30% Rating * Collateral Ligament Strain, Left Knee, Service Connected, Gulf War, 10% Rating * Scars, Left Foot, Residuals of Gunshot Wound, Service Connected, Gulf War, 10% Rating * Sensory Digital Nerve Injuries from Gunshot Wound, Left Foot, Service Connected, Gulf War, 10% Rating * Erectile Dysfunction Associated with Anxiety Disorder, Service Connected, Gulf War, 0% Rating * Left Hip Condition, Not Service Connected b. He submitted a request for employment information because of his VA decision for entitlement to individual unemployability. 14. The applicant's record is void of orders or evidence to show the circumstances for his retirement or separation from military service. 15. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. 16. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. 17. The law allows the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, any disability rating action by the VA does not demonstrate an error or injustice on the Army's part. Operating under different laws and their own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service; only the Army can make that determination. The VA may award ratings because of a medical condition related to service (service-connected) that affects the individual's civilian employability. 18. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities, which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 19. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 20. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief is not warranted. 2. The Board found insufficient evidence to support a conclusion that, prior to leaving an active status in the USAR, the applicant had conditions that did not meet medical retention standards and warranted his referral to the Disability Evaluation System. In the absence of evidence showing the applicant had a disability that rendered him unable to perform duty commensurate with his rank and military occupational specialty, the Board determined there is no basis for further review of his records to determine if he should have been referred to the Disability Evaluation System. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), 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 and Army Regulation 635-40. 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 * provide prompt disability processing while ensuring that 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 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the PEB. The purpose of the MEB is to determine whether the service member’s injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of “unfit for duty” is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are “separated” receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. 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. 3. Title 38 USC 1110 (General - Basic Entitlement), states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 4. Title 38 USC 1131 (Peacetime Disability Compensation - Basic Entitlement), states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 5. 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 rated at least 30 percent. 6. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. d. Paragraph 4-10 provides that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in Army Regulation 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. e. Paragraph 4-12 provides that each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. f. The regulation states that after the Soldier has been processed through the PDES and a PEB has made a determination that the Soldier is qualified for disability retirement but for the fact that his or her disability is determined not to be of a permanent nature and stable can be placed on the temporary disability retired list (TDRL). The TDRL is used in the nature of a "pending list." It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover, or nearly recover, from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. 8. Army Regulation 635-200 prescribes policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Chapter 4 states a Solider will be discharged or released from active duty upon termination of enlistment and other periods of active duty or active duty for training. It further notes that personnel released from active duty and transferred to the USAR upon completion of the term of service for which ordered into active Federal service, or released to their Reserve component upon completion of active duty. These Soldiers will not be discharged until completion of their reserve obligation. 9. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001995 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1