IN THE CASE OF:  

		BOARD DATE:  17 September 2021

		DOCKET NUMBER:  AR20200010012


APPLICANT REQUESTS:  medical retirement from Regular Army component in lieu of 
placement on the permanent disability retirement list (PDRL) from the Washington Army 
National Guard (WAARNG).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:
DD Form 149 (Application for Correction of Military Record).

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, United 
States Code, section 1552(b); however, the Army Board for Correction of Military 
Records (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 he would like his disability retirement to reflect he was retired 
from the Regular Army – Active Duty (AD) rather than the WAARNG.  He is unable to 
draw his AD retirement as he is coded “retired from National Guard.”  He was injured in 
Iraq and went through the retirement process for several years with the WAARNG 
before finally being identified for retirement at a Soldier Readiness Processing (SRP) at 
Fort Lewis, WA. 

3.  A review of the applicant’s service record shows:

a.	He enlisted in the Regular Army on 13 January 1997.

   b.  His Personnel Qualification Record (DA Form 2-1) shows he served in Kuwait 
from 23 February 1998 to 3 June 1998.

	c.  Orders 289-0011, dated 16 October 2001, released the applicant from active 
duty, not by reason of physical disability, with an effective date of 12 January 2002.	

	d.  He was honorably released from active duty on 12 January 2002.  His DD Form 
214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years 
of active service with 2 months and 14 days of foreign service.  He was assigned 
separation code MBK and the narrative reason for separation listed as “Completion of 
Required Active Service.”

	e.  He enlisted in the WAARNG on 11 September 2002.

   f.  The service record does not contain a DD Form 214 for the applicant’s 
deployment.  Orders 052-148, dated 20 February 2003, ordered the applicant to active 
duty with an effective date of 12 February 2003.

	g.  A DA Form 638 (Recommendation for Award), dated 3 August 2003, shows the 
applicant was recognized for serving as a Heavy Wheeled Vehicle Operator (88M) 
during Operation Iraqi Freedom.  The period of the award was from 12 February 2003 to 
31 July 2003.

	h.  Two amendments to Orders 052-148 indicated the end date was adjusted:

*	Orders 128-073, dated 6 May 2004, amended the active duty period to end 
on 29 October 2004
*	Orders 271-317, dated 27 September 2004, amended the active duty period 
to end on 30 September 2004

   i.  The applicant entered active duty on 11 January 2005 as a member of the ARNG.  
He was honorably released from active duty on 5 April 2009.  His DD Form 214 shows 
he completed 4 years, 2 months, and 25 days of active service with no foreign service 
indicated.  Block 18 (Remarks) shows he was ordered to active duty in support of 
Operation Enduring Freedom.

   j.  The applicant entered active duty on 15 April 2010 as a member of the ARNG.  
He was honorably released from active duty on 14 April 2011.  His DD Form 214 shows 
he completed 1 year of active service with no foreign service indicated.  Block 18 
(Remarks) shows he was ordered to active duty in support of Operation Enduring 
Freedom.

   j.  The applicant's service record is void of the facts and circumstances surrounding 
his entry into the MEB/PEB.
   
   k.  A DA Form 199, shows the applicant’s conditions were evaluated by an informal 
PEB on 10 July 2014.  The PEB found the applicant unfit, recommended a combined 
rating of 70 percent, and that his disposition be permanent disability retirement.  The 
sole medical condition determined to be unfitting was post-traumatic stress disorder 
(PTSD) (VASRD Codes 9413-9411).  The onset of the condition was noted as 
deployment to Iraq in 2003, line of duty (LOD) in file, and Afghanistan in 2005, and 
2009-2011.  The Behavioral health examiner attributed the condition to combat 
stressors.  The disability disposition was based on disease or injury incurred in the line 
of duty in combat with the enemy and did result from a combat-related injury.  On 18 
July 2014, the applicant concurred with the findings of the PEB and waived a formal 
hearing of his case.  He did not request reconsideration of his VA ratings.  Section IV 
(Medical Conditions Determined Not to be Unfitting) of the DA Form 199 listed the 
following medical conditions determined to meet medical retention standards:
   
*	traumatic brain injury (TBI)
*	asthma
*	migraine, including migraine variant
*	dizziness
*	joint pain, localized in the knee – right partial ACL tear, lateral meniscus tear
*	lumbar strain and spasms
*	gastroesophageal reflux disease
*	tempo-mandibular joint (TMJ) syndrome
*	right ankle sprain
*	plantar fasciitis
*	internal or external hemorrhoids and anal fissure

   l.  On 11 September 2014, the applicant was notified he was found to have a 
disability and would be permanently retired with a disability rating of 70 percent.

   m.  Orders D254-32, dated 11 September 2014, released the applicant from 
assignment because of physical disability incurred while entitled to basic pay and under 
conditions that permitted his retirement for permanent physical disability with a disability 
rating of 70 percent and placement on the retired list on 16 October 2014.

	n.  On 16 September 2014, the applicant was issued a Notification of Eligibility for 
Non-Regular Retired Pay at age 60 (Selected Reserve 15-Year Letter), which states:

*	he was eligible under legislation (Title 10, U.S. Code, Section 12731b) to 
apply for retired pay upon attaining age 60
*	he was in the Selected Reserve
*	he had completed at least 15 years of qualifying service beginning on or after 
1 October 1991
*	he had not completed 20 or more years of qualifying service
*	he had completed at least the last 6 years of qualifying service while a 
member of a reserve component
*	he had requested a transfer to the Retired Reserve

   o.  Orders 314-510, dated 10 November 2014, discharged the applicant from the 
ARNG and assigned him to The Retired Reserve on the day following his effective 16 
October 2014 date.  Additional Instructions further noted the “individual is entitled to 
retired pay at age 60 under the provisions of Title 10, United States Code, Chapter 67.”

	p.  He was honorably discharged from the WAARNG and transferred to The Retired 
Reserve on 16 October 2014.  His NGB Form 22 (Report of Separation and Record of 
Service) shows he completed 12 years, 1 month, and 8 days of net service for the 
period.  

4.  On 17 June 2021, the U.S. Army Physical Disability Agency (USAPDA) legal advisor 
rendered an advisory opinion in the processing of his case.  He opined:

	a.  The applicant’s was on active duty from 13 January 1994 through 12 January 
2002.  The applicant joined the WAARNG on 11 September 2002 and remained in the 
WAARNG until his medical retirement.  The DA Form 199 indicates the unfitting 
condition’s onset was while deployed to Iraq in 2003.  The applicant was a member of 
the WAARNG/drilling member at that time.  The applicant’s annual points statement 
does not show the applicant obtained 7200 active duty points for a regular retirement.  It 
also does not show that he was able to achieve 20 qualifying years for a non-regular 
retirement.

   b.  The applicant was not in the Active Component when the condition manifested, 
he was in the WAARNG.  As such, the applicant’s request to have his retirement orders 
reflect retirement from active duty is legally insufficient.

5.  On 18 June 2021, the advisory opinion was forwarded to the applicant for 
acknowledgment and/or response.  The processing of his case was placed on hold for 
30 days to allow him an opportunity to submit comments.  The applicant has not 
responded to date.

6.  By regulation (AR 635-8), the DD Form 214 is a summary of the Soldier's most 
recent period of continuous active duty.  It provides a brief, clear-cut record of all current 
active, prior active, and prior inactive duty service at the time of release from active 
duty, retirement, or discharge.  The information entered thereon reflects the conditions 
as they existed at the time of separation.  

7.  By regulation (AR 635-40), the Army disability system 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.  The regulation 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.

8.  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.

9.  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.  

10.  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.

11.  MEDICAL REVIEW:

     a.  The applicant is applying to the Army Board for Correction of Military Records 
(ABCMR) for medical retirement from Regular Army component in lieu of placement on 
the permanent disability retirement list (PDRL) from the Washington Army National 
Guard (WAARNG).

    b.  The applicant states he would like his disability retirement to reflect he was retired 
from the Regular Army – Active Duty (AD) rather than the WAARNG.  He is unable to 
draw his AD retirement as he is coded “retired from National Guard.”  He was injured in 
Iraq and went through the retirement process for several years with the WAARNG 
before finally being identified for retirement at a Soldier Readiness Processing (SRP) at 
Fort Lewis, WA. 

    c.  The ABCMR Behavioral Health (BH) Advisor was asked to review this case. 
Documentation reviewed includes:

*	DD Form 149 (Application for Correction of Military Record).

    d.  VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed.

    e.  A review of the Armed Forces Health Longitudinal Technology Application 
(AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were reviewed. 
    f.  The ABCMR Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  The ROP indicates that the applicant entered military 
service on 13 January 1997. 

    g.  Orders 289-0011, dated 16 October 2001, released the applicant from active duty, 
not by reason of physical disability, with an effective date of 12 January 2002.	

    h.  He was honorably released from active duty on 12 January 2002. He was 
assigned separation code MBK and the narrative reason for separation listed as 
“Completion of Required Active Service.”

    i.  He enlisted in the WAARNG on 11 September 2002.

    j.  The service record does not contain a DD Form 214 for the applicant’s 
deployment.  Orders 052-148, dated 20 February 2003, ordered the applicant to active 
duty with an effective date of 12 February 2003.

    k.  The applicant entered active duty on 11 January 2005 as a member of the ARNG.  
He was honorably released from active duty on 5 April 2009.

    l.  The applicant entered active duty on 15 April 2010 as a member of the ARNG.  He 
was honorably released from active duty on 14 April 2011.

    m.  The applicant's service record is void of the facts and circumstances surrounding 
his entry into the MEB/PEB.
   
    n.  A DA Form 199, shows the applicant’s conditions were evaluated by an informal 
PEB on 10 July 2014.  The PEB found the applicant unfit, recommended a combined 
rating of 70 percent, and that his disposition be permanent disability retirement.  The 
sole medical condition determined to be unfitting was post-traumatic stress disorder 
(PTSD) (VASRD Codes 9413-9411).  The onset of the condition was noted as 
deployment to Iraq in 2003, line of duty (LOD) in file, and Afghanistan in 2005, and 
2009-2011.  The Behavioral health examiner attributed the condition to combat 
stressors.  The disability disposition was based on disease or injury incurred in the line 
of duty in combat with the enemy and did result from a combat-related injury.  On 18 
July 2014, the applicant concurred with the findings of the PEB and waived a formal 
hearing of his case.  He did not request reconsideration of his VA ratings.

    o.  On 11 September 2014, the applicant was notified he was found to have a 
disability and would be permanently retired with a disability rating of 70 percent.

    p.  Orders D254-32, dated 11 September 2014, released the applicant from 
assignment because of physical disability incurred while entitled to basic pay and under 
conditions that permitted his retirement for permanent physical disability with a disability 
rating of 70 percent and placement on the retired list on 16 October 2014.

    q.  On 17 June 2021, the U.S. Army Physical Disability Agency (USAPDA) legal 
advisor rendered an advisory opinion in the processing of his case.  He opined:

(1)	The applicant was on active duty from 13 January 1994 through 12 January 
2002.  The applicant joined the WAARNG on 11 September 2002 and 
remained in the WAARNG until his medical retirement.  The DA Form 199 
indicates the unfitting condition’s onset was while deployed to Iraq in 2003.  
The applicant was a member of the WAARNG/drilling member at that time.  
The applicant’s annual points statement does not show the applicant obtained 
7200 active duty points for a regular retirement.  It also does not show that he 
was able to achieve 20 qualifying years for a non-regular retirement.

(2)	The applicant was not in the Active Component when the condition 
manifested, he was in the WAARNG.  As such, the applicant’s request to 
have his retirement orders reflect retirement from active duty is legally 
insufficient.

    r.  On 18 June 2021, the advisory opinion was forwarded to the applicant for 
acknowledgment and/or response.  The processing of his case was placed on hold for 
30 days to allow him an opportunity to submit comments.  The applicant has not 
responded to date.

    s.  AHLTA contains a Behavioral Health diagnosis of PTSD.

    t.  JLV does not contain any additional BH diagnoses.

    u.  From a Behavioral Health perspective there appears no basis to alter his 
retirement orders.

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The applicant’s 
contentions, the military record, a medical review, and regulatory guidance were 
carefully considered. The Board concurred with the medical reviewer’s findings and 
recommendation. Based upon a preponderance of the evidence, the Board determined 
there is insufficient evidence to amend the previous medical disposition approved by the 
PEB.


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.  Army Regulation 635-8 (Separation Processing and Documents), states the DD 
Form 214 is a summary of the Soldier's most recent period of continuous active duty.  It 
provides a brief, clear-cut record of all current active, prior active, and prior inactive duty 
service at the time of release from active duty, retirement, or discharge.  The 
information entered thereon reflects the conditions as they existed at the time of 
separation.  

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

	a.  Soldiers are referred to the disability system when they no longer meet medical 
retention standards in accordance with Army Regulation 40-501, 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.

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

	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.

5.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness 
standards for enlistment, induction, appointment (including officer procurement 
programs), retention, and separation (including retirement).  The Department of 
Veterans Affairs Schedule for Rating Disabilities.  VASRD is used by the Army and the 
VA as part of the process of adjudicating disability claims.  It is a guide for evaluating 
the severity of disabilities resulting from all types of diseases and injuries encountered 
as a result of or incident to military service.  This degree of severity is expressed as a 
percentage rating which determines the amount of monthly compensation.

6.  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.

7.  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.

8.  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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20200010012


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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