IN THE CASE OF: BOARD DATE: 5 January 2022 DOCKET NUMBER: AR20200009216 APPLICANT REQUESTS: physical disability retirement and a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * multiple sets of U.S. Army Human Resources Command (AHRC) orders, dated 2014 -2018 * multiple Baptist South Sleep Disorders Center Polysomnography Reports, dated 2016 - 2017 * DA Form 4187 (Personnel Action), dated 6 April 2018 * AHRC memorandum, dated 20 August 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), covering the period ending 1 February 2019 * numerous pages of Department of Veterans Affairs (VA) Progress Notes, dated May 2019 * VA Rating Decision, dated 5 June 2019 * VA letter, dated 6 June 2019 * multiple Standard Forms (SF) 600 (Chronological Record of Medical Care), dated 9 June 2019 * U.S. Army Reserve (USAR) Medical Management Center Profile Request, dated 9 June 2019 * DA Form 3349-SG (Physical Profile Record), dated 20 June 2019 * email correspondence, dated June- August 2019 * Headquarters, 81st Readiness Division (USAR) Orders 19-260-00008, dated 17 September 2019 * Baptist Medical Center South - Crossbridge report, dated 27 September 2019 * email correspondence, dated September – October 2019 * VA letter, dated 2 October 2019 * Army Review Boards Agency (ARBA) letter, dated 6 November 2020 * email correspondence with ARBA, December/January 2021 FACTS: 1. The applicant states: a. He separated from the USAR on 21 October 2019. He was in the process of requesting a Medical Evaluation Board (MEB) to obtain a medical retirement, but due to the imminent date of his discharge, he opted to separate at his expiration term of service (ETS). In order for him to properly appear before the MEB, he would have had to reenlist, as he was on the second extension of his enlistment contract. The first extension was done in order to allow him to accept his promotion from staff sergeant (SSG) to sergeant first class (SFC) and the second was done to allow a change in his duty position within the Montgomery Recruiting Battalion. A reenlistment would have been a waste of the Army’s time and money for him to ultimately be discharged through a medical board, not to mention the possible debt issued he might have incurred if he had received a bonus with the reenlistment. b. He served in both Iraq, from 2006 – 2007, and Afghanistan, from 2010 – 2011. During his deployments, he had experienced traumatic events from which he suffered physically, mentally, and emotionally, so as to not affect his service. This ultimately resulted in a number of service-connected disabilities that were rated by the VA at a combined rating of 100 percent. He is writing to have his evidence reviewed to determine he was not only qualified for but also entitled to a medical retirement. c. On 6 January 2017, he was diagnosed with sleep apnea and was prescribed a continuous positive airway pressure (CPAP) machine to aid his condition. He claimed this condition on his request for a permanent physical profile on 9 June 2019. d. He has been battling sever chronic back and neck pain for a number of years after his deployments, which he first claimed with the VA in 2011, referred to in his VA Rating Decision letter. He feels he incurred these conditions wearing body armor and other heavy items he carried on his back. He visited the chiropractor to help alleviate the pain, but to no avail. He has even had experiences of not being able to move, yet alone get out of bed due to the extreme pain. He claimed these conditions on his request for a permanent physical profile on 9 June 2019. e. He was diagnosed with adjustment disorder with mixed anxiety and depressed mood going back to 28 July 2016. He suffered with this condition for years, but only when it affected his family life did he decide to be seen, to help him cope with the effects on his personal life. The largest issue was being separated from his wife for 1 year and 9 months of his 2 year, 11 months of marriage is what tore his family apart, but he did his very best to continue his service honorably. The reason he has this diagnosis was to avoid the stigma and consequences a post-traumatic stress disorder (PTSD) diagnosis would have brought. f. He was finally diagnosed with PTSD on 20 May 2019, by Dr. W____ at the Montgomery VA. He previously urged the mental health care providers to diagnose him with a condition for which he could receive assistance, but that also avoided the stigma or possible career-ending results that a PTSD diagnoses could have carried. On the night of 26 September 2019, he had a severe episode related to his PTSD and was admitted to a mental health facility for 3 days. This affected his ability to work, so he resigned from his Federal civilian position in order to focus solely on his mental health. g. Thank you for your time and attention to this matter. I was his deepest honor and pleasure to serve alongside the very best soldiers and civilians this nation can produce. God bless you and our great nation. 2. The applicant enlisted in the U.S. Army Reserve on 27 January 2004 and was awarded the military occupational specialty (MOS) 42A (Human Resources Specialist). 3. The applicant was ordered to active duty in support of Operation Iraqi Freedom on 8 May 2006, with service in Iraq from 12 July 2006 through 3 July 2007. He was honorably released from active duty (REFRAD) on 8 August 2007, due to the completion of required active service and transferred back to his USAR unit after 1 year, 2 months, and 17 days of net active service this period. 4. The applicant was ordered to active duty in support of Operation Enduring Freedom on 21 September 2010, with service in Afghanistan from 2 October 2010 through 10 July 2011. He was honorably REFRAD on 16 September 2011, due to the completion of required service and transferred back to his USAR unit after 11 months and 26 days of net active service this period. 5. AHRC Orders R-04-485837, dated 29 April 2014, ordered the applicant to active duty in an active Guard/Reserve (AGR) status effective 26 May 2014, in the duty position 79R (Recruiter) at the U.S. Army Recruiting Battalion Montgomery for a period of 3 years, with a REFRAD date of 25 May 2017. 6. AHRC Orders R-08-589759, dated 28 August 2015, reassigned the applicant in duty MOS 79R from Montgomery, AL to Prattville, AL effective 28 August 2015. 7. AHRC Orders B-10-504855, dated 23 October 2015, promoted the applicant in rank/grade from SSG/E-6 to SFC/E-7 effective 1 October 2015. 8. AHRC Orders R-04-485837A01, dated 23 October 2015, amended the applicant’s prior order to active duty in an AGR status, dated 29 April 2014, to reflect a new REFRAD date of 19 October 2019, aligning with an amended active duty commitment based on his promotion in rank/grade to SFC/E-7. 9. The applicant provided two Baptist South Sleep Disorders Center, Polysomnography Reports, showing the following: a. A polysomnogram was performed overnight on the applicant on 21 September 2016 for a possible sleep apnea determination. The polysomnography documented mild positional sleep apnea. The applicant was diagnosed with obstructive sleep apnea and offered the treatment options of oral appliance therapy or trial of CPAP. b. A sleep study was performed on 3 January 2017 for the purpose of nasal CPAP titration. It was concluded that a CPAP at 7 centimeters of water pressure with a medium Eson nasal mask controlled his apnea. 10. A DA Form 4187, shows on 2 April 2018, the applicant requested REFRAD and transfer to USAR Control Group (Reinforcement) following his request for voluntary separation effective 1 February 2019. 11. An AHRC memorandum, dated 20 August 2018, shows the applicant’s request for early REFRAD was approved for the effective separation date of 1 February 2019. 12. AHRC Orders C-08-810187, dated 24 August 2018, released the applicant from attachment to U.S. Army Recruiting Battalion Montgomery effective 17 December 2008 and attached him to Fort Rucker, AL for the purpose of separation processing. 13. The applicant’s DA form 2166-9-2 (Noncommissioned Officer (NCO) Evaluation Report (SSG-1SG/MSG)), covering the period from 25 May 2018 through 5 January 2019, shows the applicant was rated in his duty MOS 79R in an AGR status at the time of his REFRAD. It reflects he passed his Army Physical Fitness Test (APFT) on 10 December 2018 and was rated as either meeting or exceeding the standard in all categories. 14. A DD Form 214, covering the period from 25 May 2014 through 1 February 2019, shows the applicant was honorably REFRAD on the through date of the form due to completion of required service. He was credited with 4 years, 8 months, and 6 days of net active service this period and transferred to the USAR Control Group (Reinforcement). 15. A DA Form 1059 (Service School Academic Evaluation Report), signed 17 April 2019, shows the applicant attended the Battle Staff NCO Course from 27 March 2019 through 18 April 2019. He achieved course standards and completed all requirements of the course in a highly satisfactory manner, obtaining a 94 percent grade point average. 16. The applicant provided copies of multiple VA Progress Notes, dated 20 May 2019, which show the following: a. The applicant was seen as a psychiatry outpatient on 20 May 2019 with complaints of having difficulty sleeping. He was diagnosed with PTSD after a past psychiatric history of adjustment disorder. b. The applicant reported he served in Iraq and Afghanistan, witnessed war trauma, and was attacked by car bombs and suicide bombers. He had difficulty sleeping at night, had severe nightmares, and flashbacks during the day with a doomed feeling. He did not like people or public places and preferred to be alone. He expressed difficulty with his ex-wife. He was taking medications with some good response with improved sleep and denied suicidal or homicidal ideations, psychotic symptoms or delusions.. 17. A VA Rating Decision, dated 5 June 2019, shows the applicant was granted service-connection for the following conditions with the following ratings, effective 2 February 2019: * major depressive disorder with anxious distress, 70 percent * obstructive sleep apnea, 50 percent * degenerative arthritis of the spine with spinal stenosis, 20 percent * diabetes insipidus, 10 percent * gastroesophageal reflux disease, 10 percent * lateral collateral ligament sprain (chronic/recurrent) with left ankle strain, 10 percent * left knee pain, 10 percent * tinnitus, 10 percent * left wrist linear scar, residual from ganglion cyst excision, 0 percent 18. A VA letter, dated 6 June 2019, shows the applicant’s combined service-connected disability rating is 100 percent. It outlines the above listed service-connected conditions and their ratings effective 2 February 2019 and the service-connection denial of additional conditions. 19. An SF 600, dated 9 June 2019, shows a physician assistant signed as the medical provider diagnosing the applicant with degenerative disc disease (DDD) of the cervical /lumbar spine, osteoarthritis (OA) of the left knee/ankle, and obstructive sleep apnea (OSA). It shows the applicant was unable to perform the three APFT events due to his lumbar spine and knee and that his physical limitations were permanent. 20. USAR Medical Management Center Profile Request, dated 9 June 2019, shows the applicant requested a new permanent physical profile for the conditions of DDD cervical and lumbar spine, OA left knee, and OSA. It shows the applicant did not have an approved line of duty (LOD) investigation, but he applicant believed the injuries occurred while he was in a Qualified Duty Status. 21. A DA Form 3349-SG, dated 20 June 2019, shows the applicant was given a permanent physical profile rating of “2” in the category P-- Physical capacity or stamina due to pauses in breathing during sleep. The remaining categories were given a physical profile rating of “1.” The form shows the applicant required the use of a PAP machine during sleep. If unable to use the PAP and sleepy, he should not fire a weapon, drive a vehicle, operate dangerous equipment, stand guard, or perform duties that are dangerous or required sustained attention. 22. Email correspondence between the applicant and his unit between 21 June 2019 and 12 August 2019, show a review of his medical records validated he had a permanent physical profile rating of “2” for his sleep disorder condition with specific limitations. He still had a temporary physical profile for his neck, left knee, and lower back conditions due to expire on 7 September 2019. He was informed those conditions would need provider notes from a specialist if requesting a permanent physical profile. The applicant indicated he would attempt to obtain such documentation. 23. Headquarters, 81st Readiness Division (USAR) Orders 19-260-00008, dated 17 September 2019, honorably discharged the applicant from the USAR. 24. Baptist Medical Center South documents, dated 27 September 2019, show the applicant was admitted to the hospital on 27 September 2019 with diagnoses of bipolar disorder and PTSD. The provided documents do not contain a narrative of the conditions or incident given rise to his admission, his in-hospital treatment, nor do they specify his date of release. Numerous pages of lab and radiology results are contained in the report as well as his prescribed medications, which include divalproex sodium (treats seizure disorders or manic episodes), famotidine (treats ulcers), olanzapine (antipsychotic medication), melatonin (for sleep regulation), propranolol (treats tremors, angina, hypertension), and trazodone (treats major depressive disorder). 25. Email correspondence from the applicant to presumable members of his civilian Federal employment chain of command, show that on 30 September 2019, he requested to resign from his positon as a Government Information Specialist. He was advised of his out-processing and sick-leave requirements. 26. A VA letter, dated 2 October 2019, lists the applicant periods of honorable active service. 27. 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. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 28. Title 38, U.S. Code, 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. 29. 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. 30. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS), the Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV). The applicant requests Army medical retirement. b. He is 100% service connected by the VA for the following disabilities: Major Depressive Disorder with Anxious Distress (70%); OSA (50%); Degenerative Arthritis of the Thoracolumbar Spine with Spinal Stenosis (20%); Degenerative Arthritis of the Cervical Spine with Spinal Stenosis (20%); Diabetes Insipidus (10%); Gastroesophageal Reflux Disease (10%); Lateral Collateral Ligament Sprain (Chronic/Recurrent) with Left Ankle Strain (10%); Left Knee Pain (10%); Tinnitus (10%); and Left Wrist Linear Scar, Residual from Ganglion Cyst Excision (0%), effective 02Feb2019 (05Jun2019 VA Rating Decision). In his request, the applicant specifically mentioned the following conditions: (1) Sleep Apnea. Mild Positional Obstructive Sleep Apnea(OSA) was confirmed by overnight polysomnogram on 21Sep2016. For treatment, he was offered an oral appliance or alternatively he could try a trial of CPAP. The CPAP titration results revealed that the condition was controlled with CPAP. Review of service treatment records did not show ongoing complaints of persistent daytime somnolence. He does have a history of Primary Insomnia since 2016 which is different from sleep apnea. (2) Chronic Back Pain. He was undergoing chiropractic care at the time of discharge. He had a history of sporadic treatment from April to November 2016 (5 visits) and then again from June 2017 to October 2018 (7 visits). (3) Chronic Neck Pain. There were only 2 visits with principle diagnosis of cervical pain (19Apr2017 and 29Nov2017); however, the record did show that frequently, the applicant had treatment for both neck and back during chiropractic visits. (4) Adjustment Disorder with Mixed Anxiety and Depressed Mood/PTSD. The applicant had combat deployments to both Iraq (2006) and Afghanistan (2010). From March to September 2016 the applicant underwent services in the Family Advocacy Program. And then from August to October 2015; and from March 2016 to January 2019, he participated in regular behavioral health counseling. The applicant requested early release from active duty in order to continue his civilian military technician position which was approved 20Aug2018. The applicant also had desires to enter law enforcement after discharge from the military. The final appointment in AHLTA on 24Jan2019 Max Mental Health Clinic summarized: “Patient did not require medical profile/duty limitations/MEB processing during the course of treatment. Patient’s response to treatment included a reported improvement in presenting symptoms. Care was terminated during the last appointment on 24 Jan 2019...The reason for termination was separation from the military”. Test results showed scores consistent with mild anxiety and mild depression. However, he had clinical insomnia of moderate severity. His diagnosis was Adjustment Disorder with Mixed Anxiety and Depressed Mood. He was deemed to be suitable for continued military service. Just a few days prior to discharge from USAR, from 27-29 September 2019 the applicant was hospitalized at the Baptist Medical Center South - Crossbridge and was diagnosed with Bipolar Disorder and PTSD. DSM-5 criteria were not detailed, however, triggers/stressors were noted to be finances and disappointment with career choices. Per 30Sep2019 email, he resigned from his civilian Government Information Specialist position. c. The ERB dated 04Feb2019 showed that he passed the APFT in October 2017 scoring 230. The NCOER covering the period from 20180525 to 20190105 showed he was performing in his 79R40 MOS as a Virtual Recruiting Team NCOIC. He passed the APFT on 10Dec2018. He completed 15 semester hours of college credit towards a bachelor's degree. He exceeded intellectual and leadership standards. The overall potential rating by the Senior Rater was ‘Highly Qualified’. The Service School Academic Evaluation Report for the Battle Staff NCO Course completed from 20190327 to 20190418 showed that he achieved course standards, demonstrating ‘superior’ abilities in all categories tested to include contribution to group work and oral communication. d. On 30Aug2018, a Florida Highway Patrol Medical Release Form was completed and affirmed that the applicant had no medical condition or disorder that precluded him from participating in the physical abilities test for pre-employment. On 04Jan2019, the applicant underwent a separation physical exam. Both 2807-1 and 2808 Forms were completed. He had numerous and varied reported symptoms and diagnoses in the 27Dec2018 Report of Medical History. However, the Report of Medical Exam revealed no significant physical defects. e. The record showed that 4 months prior to discharge from USAR, on 09Jun2019, the applicant requested a new, permanent physical profile for Degenerative Disc Disease of the Cervical and Lumbar Spine; Left Knee Osteoarthritis; and Obstructive Sleep Apnea. In response, on 20Jun2019, he was given a permanent P2 profile for Pauses in Breathing During Sleep (for OSA) and a temporary level 1 profile for Left Knee Injury/Pain; Lower Back Injury/Pain; and Neck Injury/Pain (set to expire 07Sep2019). The permanent profile allowed all APFT events; however, the temporary profile (for the orthopedic conditions) prohibited all APFT events. f. At the time of discharge, the applicant did not have a permanent level 3 profile for any condition. The record showed that he had several chronic orthopedic conditions as well as a mental health condition, OSA and others; however, the record did not show any resultant degradation in performance. Based on review of available records, medical evidence was insufficient to support that the applicant had a condition that failed medical retention standards in accordance with AR 40-501 chapter 3 warranting medical discharge separation. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, and a medical advisory opinion. The Board considered the applicant statement, his record of service, documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion that the applicant met medical retention standards at the time of discharge from active service. Therefore, the Board agreed that the applicant’s discharge was proper and fitting and there is insufficient evidence in the applicant’s medical and service records of a service-related medical disability or condition that would support a change of his to his records. Relief was denied. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 2. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. Paragraph 4-34 (Reserve Component non-duty related process) describes the Reserve Component non-duty related process and policy. It affords Reserve Component Soldiers not on call to active duty of more than 30 days and who are pending separation by the reserve Component for non-duty related medical conditions to enter the Disability Evaluation System (DES) for a determination of fitness and whether the condition is duty-related. (1) A line of duty (LOD) investigation resulting in a finding of not in LOD is not required when it is clear that the disqualifying disability is non-duty related. For example, a Reserve Component Soldier’s disqualifying condition is an amputation that was incurred when the Soldier was not in a duty status. (2) Referral to the Reserve Component non-duty related process is upon the request of the Reserve Component Soldier. If the Soldier does not request referral, they are subject to separation for medical disqualification under Reserve Component regulations. (3) In the situation of a Reserve Component Soldier having multiple disqualifying conditions, if any one of the conditions was incurred or aggravated in the LOD, the Soldier is not eligible to be processed under the non-duty related process. (4) In the absence of a not in the LOD determination for the non-duty related medical condition, the PEB president has the authority to direct the return of the cause for re-referral under the Integrated (IDES) process. Such action is warranted when the PEB has evidence that he condition was incurred or aggravated in the LOD. For example, the Soldier’s military medical records reflect that the condition was incurred or aggravated when the Soldier was in a duty status. In this situation, the PEB terminates the non-duty related case adjudication. 3. Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40 with the following caveats: a. USAR or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Normally, Reserve Component Soldiers who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 or discharged from the Reserve Component per Army Regulation 135–175 (Separation of Officers), Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative Separations), or other applicable Reserve Component regulation. They will be transferred to the Retired Reserve only if eligible and if they apply for it. c. Reserve Component Soldiers who do not meet medical retention standards may request continuance in active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reserve Component Soldiers with non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. d. Paragraph 9-12 states Reserve Component Soldiers with nonduty related medical conditions who are pending separation for failing to meet the medical retention standards of chapter 3 of this regulation are eligible to request referral to a PEB for a determination of fitness. Because these are cases of Reserve Component Soldiers with non–duty related medical conditions, MEBs are not required and cases are not sent through the PEBLOs (Physical Evaluation Board Liaison Officers) at the military treatment facilities. Once a Soldier requests in writing that his or her case be reviewed by a PEB for a fitness determination, the case will be forwarded to the PEB by the USARC Regional Support Command or the U.S. Army Human Resources Command Surgeon’s office and will include the results of a medical evaluation that provides a clear description of the medical condition(s) that cause the Soldier not to meet medical retention standards. 4. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 5. Title 10 USC, section 12731b (Special rule for members with physical disabilities not incurred in the line of duty), enacted 23 October 1992, provides in pertinent part that in the case of a member of the Selected Reserve of a RC who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes as of 1 October 1991. This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC. 6. Title 38 U.S. Code 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. 7. Title 38 U.S. Code 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. 8. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-11 states 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009216 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1