IN THE CASE OF: BOARD DATE: 27 October 2021 DOCKET NUMBER: AR20210005189 APPLICANT REQUESTS: in effect, * entry into the disability evaluation system * within the disability evaluation system, a finding he was found medically unfit for continued service * correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 7 December 2011 to show his narrative reason for separation as medical retirement * correction to his DD Form 214 by removing the narrative reason for separation currently shown as "Weight Control Failure" * payment of retired pay benefits effective 8 December 2011, the first day after his separation date 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) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 4700 (Medical Record Supplement Medical Data) dated 20 July 2006 * Deployment Vision Readiness Spreadsheet dated 20 July 2006 * DD Form 2796 (Post Deployment Health Assessment) dated 17 December 2007 * Questionnaire to Assess Depleted Uranium Exposure dated 6 May 2010 * DD Form 214 Service Treatment Records FACTS: 1. The applicant did not file within the 3-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, in effect, that he has post-traumatic stress disorder (PTSD) and physical pain from his three deployments to Iraq. He states after he returned from his second deployment to Iraq in 2007, he was not treated for his various medical conditions. He was reassigned to a new unit and required to deploy to Iraq in 2009. After seeking medical treatment for his mental health, he also realized he suffered from mental health issues after his deployment to Kosovo in 2000 and his first deployment to Iraq in 2003. In 2011 he could not maintain his physical and mental readiness standards. His unit separated him for weight control failure instead of requesting he undergo a medical evaluation board. He suffered an injustice because his unit or medical doctors failed to enter him into the disability evaluation system. After his separation he sought medical treatment at the Department of Veterans Affairs (VA) who determined his combined disabling rating is 70 percent for service connected medical conditions. 3. The applicant’s electronic personnel record maintained by the U.S. Army Human Resources Command contains the following pertinent information. a. He enlisted in the Regular Army on 1 September 1999. He completed training in military occupational specialty (MOS) 21B (Combat Engineer). b. He deployed with his unit to Kosovo on 29 November 2000. c. He redeployed to his home station from Kosovo on 28 February 2001. d. He reenlisted in the Regular Army on 27 February 2002 for a 3-year period of active service. e. He was promoted to sergeant/pay grade E5 on 6 November 2002. f. He deployed to Kuwait on 26 April 2003 and then moved with his unit to Iraq after the start of combat operations in Iraq. g. He redeployed from Iraq on 26 October 2003. h. On 27 December 2004 at Fort Campbell, Kentucky, Orders Number 362- 0014 were issued releasing him from active duty on 27 February 2005, not by reason of physical disability, and assigning him to the U.S. Army Reserve (USAR) Control Group (Reinforcement) effective 28 February 2005. i. On 27 January 2005 Fort Campbell personnel issued him Orders Number 027-0701 amending Orders Number 362-0014. The amendment shows he would be assigned to the State of California Army National Guard (CAARNG) after his release from active duty. He was required to report to his CAARNG unit within 30 days of his date of release from active duty. j. On 27 February 2005 he was honorably released from active duty as ordered. He was issued a DD Form 214 documenting his active service of 5 years, 5 months and 27 days. He was released under Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel) chapter 4 upon the completion of his period of required active duty service. His reentry code (RE) was RE1, meaning he could immediately enlist in the Regular Army at a future date. k. As ordered he enlisted in the CAARNG on 28 February 2005. He remained in the CAARNG for 4 months and 23 days before he was honorably discharged on 20 July 2005 in order to enlist in the Regular Army. l. On 21 July 2005 he enlisted in the Regular Army under the U.S. Army Training Enlistment Program for MOS 88M (Motor Transport Operator). Prior to his enlistment he underwent a physical examination. The medical provider recorded the results of his physical examination on DD Form 2808 (Report of Medical Examination) on 29 June 2005. He was found qualified for service with no underlying physical profiles. The only annotation on his medical examination form was he had identifying tattoos. His medical examination was reviewed for completeness and accuracy by a reviewing authority. m. On 2 November 2006 he deployed to Iraq serving in MOS 88M. n. On 4 March 2007, Headquarters, Multi-National Division (Baghdad), Iraq issued Permanent Orders Number 063-013 awarding him the Combat Action Badge for actively engaging or being engaged by enemy forces on 13 February 2007. o. On 1 October 2007 he was promoted to staff sergeant/pay grade E-6 in MOS 88M. p. On 19 January 2008 he redeployed out of Iraq. His Enlisted Record Brief shows his dwell time in Iraq for this deployment was 15 months. His electronic personnel record does not contain his DA Form 2796 (Post Deployment Health Assessment). q. On 16 July 2008 he successfully completed the Motor Transport Operator Basic Noncommissioned Officer (NCO) Course. A review of his academic evaluation report shows he received superior ratings for his oral communication, leadership skills and contributions to group work. He received satisfactory ratings for his written communication skills and his ability to conduct research. His rater stated he demonstrated superior verbal communication skills and excellent leadership abilities as a student squad leader. He concluded by stating the applicant was an outstanding NCO with much potential. r. On 6 May 2009 he deployed to Iraq. This was his third deployment to Iraq. s. On 6 May 2010 he redeployed from Iraq to his unit’s home station at Fort Bliss, Texas. t. On or about 16 March 2011 he was reassigned to Fort Irwin, California. u. On or about 22 March 2011 he was enrolled in the Army Weight Control Program. He was formally flagged under Army Regulation 600-9 (Army Weight Control Program) on 14 April 2011. He was counselled by his unit leadership who informed him he would be weighed and taped on a monthly basis. His objective was to lose 3 to 8 pounds a month. His counseling dated 22 March 2011 informed him if he did not make satisfactory progress in the weight control program he could be considered for administrative separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 18 (Weight Control Failure). He would remain in the program for 6 months and after that date, his chain of command would determine his disposition. He acknowledged his counselling affixing his signature to an endorsement. He was further informed he must undergo a medical evaluation to determine the cause of his overweight condition. v. On an unknown date his company commander informed medical providers that he exceeded the Army height and weight tables by 39 pounds and he also exceeded the body fat standards by 3 percent. w. On 26 May 2011 he received nutrition counseling in compliance with Army Regulation 600-9. x. On 30 June 2011, he was weighed and taped in his unit. On that date he was 45 pounds over his authorized weight of 194 pounds. His body fat percentage was 6 percent over the authorized screening table body fat percentage of 24 percent. He was informed he was not in compliance with the body fat standards of Army Regulation 600-9. He was counseled by his squad leader and his counseling was recorded on DA Form 4856 (Developmental Counseling Form). y. On 7 July 2011, he was weighed and taped in his unit. On that date he was 52 pounds’ overweight and his body fat percentage was 9 percent above the authorized body fat percentage of 24 percent. He was informed he was not in compliance with the body fat standards of Army Regulation 600-9. z. On 25 July 2011 a physician informed his company commander that he was found fit for duty and that his overweight condition was not due to an underlying medical condition. He was medically cleared to participate in the unit weight control and exercise program. The medical provider recommended he undergo nutrition counseling. aa. On 5 August 2011 his company commander initiated a memorandum for record stating the unit did not complete a body fat content worksheet nor performed a monthly weigh-in and body fat measurement as required by regulation for the month of May 2011. ab. On 19 August 2011 he enrolled in the Army MOVE! Program under the Army Weight Management Program. This program is the Army’s online weight management program. He indicated he had two medical issues arthritis or joint pain and tobacco usage. He also indicated he was not considering trying to control his weight on that date though he said he thought he could lose 10 pounds or less in a year. He was told it was safe for him and others to lose ½ to 2 pounds a week. He did indicate he had too much stress, he was depressed, he felt anxious or nervous and that he had PTSD. He was informed that emotional stress often leads to weight gain. He was provided information handouts on dealing with stress, anxiety and depression. ac. On 26 August 2011, he was counseled by his squad leader and his counseling was recorded on DA Form 4856. He had weighed in at 248 pounds exceeding the weight table for his height by 59 pounds. He underwent weight control taping and his body fat percentage exceeded the standard by 10 percent. ad. On 5 October 2011, he was counseled by his squad leader and his counseling was recorded on DA Form 4856. He had weighed in and he had exceeded his authorized screening weight by 62 pounds. His body fat percentage had increased to 11 percent and his total body fat percentage was 35 percent. His authorized body fat percentage was 24 percent. ae. On 11 October 2011, he was counseled and it was recorded on DA Form 4856. He was informed his company commander would recommend to his battalion commander his administrative separation under Army Regulation 635-200, chapter 18. He was enrolled in the Army Weight Control Program on 14 April 2011 and during the month of September 2011 he gained weight. He acknowledged he was counseled affixing his signature to the counseling form. af. On 2 November 2011 his company commander initiated action to separate him from the Regular Army for failure to meet the Army Weight Control Program standards. He had been enrolled in the weight control program for 6 months and had not made satisfactory progress. His commander informed him in writing of his rights including: * consulting with counsel and/or civilian counsel at no expense to the Government * submitting written statements on his behalf * obtaining copies of documents that would be sent to the separation authority * entitlement to a hearing before an administrative board based on his more than 6 years of active and Reserve military service * waiving the aforementioned rights in writing * submitting a conditional waiver to have his case heard before an administrative board * completing a medical examination prior to separation ag. He acknowledged receipt of his notification memorandum informing him his unit commander initiated administrative separation action under Army Regulation 635-200, chapter 18. ah. On 9 November 2011 he met with counsel and was informed of the basis for his commander’s contemplated action to separate him prior to his expiration of term of service. He stated in writing he had been informed of his rights including to representation by counsel and the right to have his case heard by an administrative separation board. He elected to waive this right and not undergo an administrative separation board. He declined to submit mitigating statements on his own behalf and waived further consultation with appointed counsel. He and his consulting counsel affixed their signature to his notification memorandum. ai. His unit commander prepared a memorandum recommending to his superiors his elimination from the Army for weight control program failure. At the time the memorandum was prepared, he had more than 7 years of active service. His commander stated is was not feasible to retain the applicant because further rehabilitation would not produce a quality Soldier. aj. A military trial counsel within the Office of the Judge Advocate at Fort Irwin reviewed the administrative separation packet and found it legally sufficient. ak. On 14 November 2011, the separation authority directed the applicant’s separation prior to his expiration of his term of service under Army Regulation 635-200, chapter 18. The separation approval authority directed issuance of an Honorable Discharge Certificate for the applicant. al. On 22 November 2011 personnel at Fort Irwin issued Orders Number 326- 0027 discharging him effective 7 December 2011. On that date he was issued a DD Form 214 showing his Operation Iraqi Freedom service awards, his military awards including the Combat Action Badge and it also contained the following pertinent information: * Block 23 (Type of Separation) – discharge * Block 24 (Character of Service) – honorable * Block 25 (Separation Authority) – Army Regulation 635-200, chapter 18 * Block 26 (Separation Code) – JCR * Block 28 (Narrative Reason for Separation) – weight control failure 4. The applicant provided the following information in support of his application. a. He completed DA Form 2769, a post-deployment health assessment in December 2007 prior to his departure from Iraq. This is an automated form asking specific preprogramed questions. He stated his health had stayed about the same throughout the deployment. He had not been hospitalized though he indicated he was experiencing chest pain or pressure in his chest and had difficulty breathing while in Iraq. He also had a runny nose and generally felt weak. He stated he did not see anyone killed, wounded or dead and did not discharge his weapon. He did have feelings that he was in great danger or thoughts of being killed. He indicated that he felt little interest or pleasure in doing things, he felt down, depressed and at times hopeless. He indicated he had no thoughts of suicide. He had been experiencing conflict with his spouse. He concluded by indicating he was interested in receiving help for his stress level and emotional support. b. After his deployment on 13 April 2008 he underwent medical examinations and radiology reviews for his knee. His radiographs were normal, except for soft tissue swelling anterior to the patella. Additional medical notes show he suffered a contusion to his knee. c. On 30 January 2010 while deployed he sought medical treatment for upper back pain between his shoulder blades. He was prescribed pain medication and issued a limited profile for 2 weeks through 14 February 210 with no jumping, no running, no heavy lifting, no pull ups, no sit-ups and no driving. His injury was described as a non-battle related injury. d. On 17 August 2010 he underwent an audiology examination due to having difficulty hearing. The results showed he did not have hearing loss and his profile rating for his hearing remained "H1" with no profile limitation. e. On 2 November 2010 he sought medical treatment for knee pain. A review of his medical problem list showed he had chronic depression, PTSD, sleep disturbance and adjustment disorder with depressed mood. At the time he had no psychiatric diagnosis or conditions on Axis I of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). [Within DSM-IV there is a five-part axis system with Axis I shown as clinical disorders and conditions that required clinical attention such as schizophrenia, major depression, bipolar disorder, or panic disorders. Axis II identified personality disorders and mental retardation.] f. He provided additional medical records requiring review by the Army Review Board Agency medical officers. 5. As the applicant is requesting entry into the disability evaluation system, his application and its supporting evidence were forwarded to the Army Review Board Agency medical doctors who provided a medical advisory for the Board’s review. See "Medical Advisory." 6. 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. 7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) prescribes the Army Disability Evaluation System (DES) 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. Effective 19 January 2017, the DES legacy process will be used for Army Veterans referred to the DES by the ABCMR. The Secretary of the Army or designee approves requests for legacy processing on a case-by-case basis. The VA Form 21-0819 (DoD Referral to Integrated Disability Evaluation System (IDES)) will not be used, to include cases referred by the ABCMR when the applicant does not have an active status in the U.S. Army. The VA will not conduct the examination upon which the medical evaluation board (MEB) findings are based. Instead, the MEB convening authority will assign a physician or physicians to conduct the required examination(s). The examinations will meet the minimum criteria of the VA medical examinations. Medical conditions evaluated during the DES will solely consist of those conditions for which a P3/P4 profiles was approved and any other conditions which the physician conducting the MEB finds individually or in combination are not likely to meet medical retention standards. Cases referred by the ABCMR address conditions in the context of their status at the time of the Veteran’s separation. 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 at less than 30 percent. 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, Code of Federal Regulations, 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 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 medical discharge. He was separated for not meeting height/weight standards. He says that he had physical pain and PTSD. He contends he should have had Medical Review to assess why he could not maintain physical and mental readiness. He was rated at 70% by the VA. b. JLV search showed that the applicant was service connected by the VA for the following disabilities: PTSD 50%; Limited Extension of Knee (10%); Limited Extension of Knee (10%); Limited Motion of Ankle (10%); and Limited Motion of Ankle (10%). (1) PTSD. (a) 17Dec2007 Ft Bliss BH. The applicant was first evaluated by BH. The Post Deployment Health Assessment was reviewed and listed sleep issues; marital conflict; and use of alcohol as a sleep aide. His older brother had recently committed suicide in October 2007. The applicant also described some combat trauma: Being shot at in Serbia, for example. His current symptoms were hypervigilance, nightmares, and marital conflict. He shared that he used to self-mutilate, but he stopped in 1999 just before coming into the Army. He exercised instead (running). He didn’t return for follow up until 5 months later. (b) 29May2008 Beaumont AMC BH. Stressors: Bad dreams; trouble sleeping; stress at work; and his brother's suicide. He reported sadness and fleeting thoughts of suicide. His deceased brother’s birthday was 2 weeks prior. He had two counseling sessions in May and two in June in 2008. BH initiated a phone call to follow up with him on 30May2008. He reported sleep issues since his last deployment; marital problems; financial stress; and nightmares related to his brother hanging himself. He described himself as antisocial and easily irritated. He took medication briefly. (c) 21May2010 Beaumont AMC BH. He self-referred for complaints of anxiety, sleep disturbance, and being upset by interactions with his 1SG. He shared details and stressors from his deployments: He saw burnt bodies and bodies being blown apart. He also reported childhood physical abuse by his brother. (d) 25Jun2010 Biggs Ft Bliss BH. He presented complaining of being angry and problems with sleep. He stated that he was supposed to go to anger management—he had been arrested. He was diagnosed with PTSD, and Depression. He was restarted on a psychotropic agent. (e) 06Aug2010 Beaumont AMC BH. His mood was described as "layed back" and his sleep was much better over the last month. Dangerous thoughts, homicidal thoughts, abnormal thoughts, change in thought patterns, personality-related complaints, and interpersonal relationship problems were not reported. No significant BH symptoms were reported. He had been prescribed medication in Jun2010 but he only took it a few weeks. He stated that it gave him nightmares. This was the last visit before his discharge. (f) A year and 8 months after his last BH visit, he was called for a well check, but he credibly denied thoughts of suicide (26Apr2012 VA Suicide Telephone note). (g) 10May2012 Social Work Case Management note. TBI, PTSD and Depression screens were negative. (h) The applicant was next seen 9 months later (04Feb2013 VA BH note). He reported new onset flashbacks. He had nightmares and was hypervigilant. He was not taking medication. He was interested in trying supplements. (2) Bilateral Knee Chondromalacia (a) 01May2007 Theatre Clinic. The applicant was seen for left kneecap pain for about 1 month. He noted pain when climbing steps or when planting his foot. The exam revealed no laxity in ligaments. There was no swelling or deformities. There was tenderness over the patellar tendon. (b) 03May2007 Theatre Clinic. He started knee rehab with physical therapy. (c) 13Apr2008 Sick Slip. Diagnosis: Right Knee Contusion. He was given quarters for 24 hours. (d) 02Nov2010 Biggs Ft Bliss. The left knee had crepitus and was tender on palpation. The right knee exam was normal. Gait and stance were normal. (e) 29Sep2011 Weed ACH. The diagnosis was Patellar Chondromalacia. His left knee exam was normal. There was normal movement of all extremities. (3) Right and Left Ankle conditions. On 22Aug2001, the applicant was seen for a twisted left ankle 2 days prior. Diagnosis: Possible Left Ankle Sprain. 6 years later (01May2007 Theatre Clinic), he was seen reporting dull pain over the lower portion of Achilles tendon. There was no recent trauma/injury. The exam showed tenderness to palpation. The ARBA reviewer could not find any other in-service notes for the ankles, nor the VA C&P Ankle Conditions exam. (4) Hiatal Hernia. The applicant’s first presentation in AHLTA records was on 29Sep2011 when he reported several years of GERD (gastroesophageal reflux disease) following every meal. He was started on medication and was referred to gastroenterology for studies. At the follow up visit with General Surgery on 04Oct2011, he described more details: Burning in his throat. He denied abdominal pain, nausea, and emesis. His abdominal exam was normal. A sliding hiatal hernia was found during the upper gastrointestinal radiographic studies in October 2011. He reported in the 18Nov2015 VA C&P Esophageal Conditions exam that the condition was helped by prescription Nexium or over-the-counter Prilosec. c. The 29Jul2011 Weed ACH visit for chapter 18 physical exam was not available for review by the ARBA reviewer. d. Brief Summary of Weight Control Program (1) 22Mar2011 memo regarding his entry into the Height/Weight program. (2) 22Mar2011, 14April2011, 12May2011, 30Jun2011, 26Aug2011, 05Oct2011 Developmental Counseling Form concerning compliance with the Army Overweight and Body Fat Standards (3) 20Jul2011 Body Fat Content Worksheet indicated that he was supposed to be losing 3-8 pounds per month, but he was not in compliance. (4) 25Jul2011 he was medically cleared to participate in weight control and exercise program. He was to participate in remedial PT for 1 hour Monday to Friday. (5) 29Jul2011 Weed ACH lab work showed thyroid function within normal limits. (6) 09Aug2011 introduction to the Army MOVE! Program relaying basic suggestions on activity and food choices for healthy weight loss. (7) Body Fat Content Worksheets (22Mar2011, 14Apr2011, 30Jun2011, 20Jul2011, 25Aug2011, and 29Sep2011) indicated that he was supposed to be losing 3-8 pounds per month, but he was not in compliance. (8) 26May 2011 and 22Aug2011 Nutrition Care Weed ACH. Diagnoses: Overweight/Obese due to Excessive Energy Intake and Minimal Energy Expenditure as evidenced by failing Army height/weight and total body fat standards per AR 600-9; and Food and Nutrition Related Knowledge Deficit, due to no prior need for nutrition and physical activity education and counseling as evidenced by commander's special interest per AR 600-9. (9) 11Oct2011 Developmental Counseling Form. He was recommended for a chapter 18 under AR 635-200. He had gained rather then lost weight. (10) 01Nov2011 the separation was reviewed by the Military Justice Division and was found to be legally sufficient. (11) 02Nov2011 he was advised of the action to separate him under AR 635- 200, chapter 18, Failure to Meet Weight Control Standards. He was also advised that a physical exam should be completed in accordance with AR 40-501. He was also advised that he was entitled to a hearing before an administrative Board. (12) 09Nov2011 he waived consideration of his case by an administrative separation board. e. NCOER covering the period from 20110301 to 20111207 showed that the senior rater’s assessment of his overall performance and potential was that the applicant was “fully capable”. It was noted that he passed the APFT on 12Aug2011; however, it was noted that he had failed to meet height and weight standards in accordance with AR 600-9. And finally, the rater noted that the applicant had maintained a high level of mental and physical resiliency while managing a heavy workload. f. Based on records available for review, evidence was insufficient to support that the applicant had conditions that failed to meet medical retention standards in accordance with AR 40-501 chapter 3. It appeared that the applicant’s medical conditions were duly considered during medical separation processing. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion. The Board considered the applicant statement, his record of service, the reason for his separation. The Board considered the medical records, VA documents provided by the applicant and the review and conclusions of the advising official. Evidence of record shows, at the time of separation, documentation supports the narrative reason for separation properly identified on the DD Form 214. The Board determined there was insufficient evidence to support payment of retired pay benefits effective 8 December 2011. The Board concurred with the medical opinion finding insufficient evidence to warrant entry into the disability evaluation system or the disability evaluation system showing he was found medically unfit for continued service. Furthermore, the Board determined there was no error on the applicant’s DD Form 214 and no correction has merit. The Board concluded there was insufficient evidence of an error or injustice which would warrant a correction to his records. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XX XXX 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 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), currently in effect, prescribes 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. It implements the requirements of Title 10, U.S. Code, chapter 61; Department of Defense Instructions (DoDI) 1332.18 (Disability Evaluation System (DES)); DoD Manuel 1332.18 (DES Volumes 1 through 3) and Army Directive 2012-22 (Changes to Integrated Disability Evaluation System Procedures) as modified by DoDI 1332.18. a. The Surgeon General of the Army will establish and interpret medical standards for retaining Soldiers on active duty. b. The objectives are to maintain an effective and fit military organization with maximum use of available manpower; provide benefits to eligible Soldiers whose military service is terminated because of a service-connected disability; provide prompt disability evaluation processing ensuring the rights and interests of the Government and Soldier are protected; and, establish the Military Occupational Specialty Administrative Retention Review (MAR2) as an Army pre-DES evaluation process for Soldiers who require a P3 or P4 (permanent profile) for a medical condition that meets the medical retention standards of Army Regulation 40-501. c. Public Law 110-181 defines the term, physical DES, as a system or process of the DoD for evaluating the nature and extent of disabilities affecting members of the Armed Forces that is operated by the Secretaries of the military departments and is composed of medical evaluation boards, physical evaluation boards, counseling of Soldiers, and mechanisms for the final disposition of disability evaluations by appropriate personnel. d. The DES begins for a Soldier when either of the events below occurs: (1) The Soldier is issued a permanent profile approved in accordance with the provisions of Army Regulation 40–501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears not to meet medical retention standards in accordance with AR 40–501. Within (but not later than) 1 year of diagnosis, the Soldier must be assigned a P3/P4 profile to refer the Soldier to the DES. (2) The Soldier is referred to the DES as the outcome of MAR2 evaluation. e. A medical evaluation board is convened to determine whether a Soldier’s medical condition(s) meets medical retention standards per Army Regulation 40- 501. This board may determine a Soldier’s condition(s) meet medical retention standards and recommend the Soldier be returned to duty. This board must not provide conclusions or recommendations regarding fitness determinations. f. The physical evaluation board (PEB) determines fitness for purposes of Soldiers’ retention, separation or retirement for disability under Title 10, U.S. Code, chapter 61, or separation for disability without entitlement to disability benefits under other than Title 10, U.S. Code, chapter 61. The physical evaluation board also makes certain administrative determinations that may benefit implications under other provisions of law. The PEB is not a statutory board. It is a fact finding board evaluating the physical condition of the Soldier against the physical requirement of the Soldier’s office, grade, rank or raring. g. The PEB may permanently retire a Regular Army Soldier if he has at least 20 years of service as defined in section 1208, Title 10, U.S. Code. h. Unless reserved for higher authority, the U.S. Army Physical Disability Agency approves disability cases for the Secretary of the Army and issues disposition instructions for Soldiers separated or retired for physical disability. i. The DES legacy process will be used for Army Veterans referred to the DES by the Army Board for Correction of Military Records (ABCMR). The Secretary of the Army or designee approves requests for legacy processing on a case-by-case basis. The VA Form 21-0819 (DOD Referral to Integrated Disability Evaluation System (IDES)) will not be used, to include cases referred by the ABCMR when the applicant does not have an active status in the U.S. Army. The VA will not conduct the examination upon which the MEB findings are based. Instead, the MEB convening authority will assign a physician or physicians to conduct the required examination(s). The examinations will meet the minimum criteria of the VA medical examinations. Medical conditions evaluated during the DES will solely consist of those conditions for which a P3/P4 profiles was approved and any other conditions which the physician conducting the MEB finds individually or in combination are not likely to meet medical retention standards. Cases referred by the ABCMR address conditions in the context of their status at the time of the Veteran’s separation. 4. Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, retirement and related policies and procedures. Chapter 3 describes the various medical conditions and physical defects which may render a Soldier unfit for further military services. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier’s performance of duty; may compromise or aggravate the Soldier’s health or well-being, if they were to remain in the military Service such as frequent clinical monitoring; may compromise the health or well-being of other Soldiers; and may prejudice the best interest of the Government if the individual were to remain in the military Service. Soldiers who do not meet the required medical standards will be evaluated by a medical evaluation board. a. The general policy states that 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 in this chapter to a medical evaluation board. b. Paragraph 3–32 refers to mood disorders and paragraph 3-33 refers to anxiety, somatoform, or dissociative disorders may be referred to a medical evaluation board providing the following criteria is met: * persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization * persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment * persistence or recurrence of symptoms resulting in interference with effective military performance 5. Army Regulation 635-200 published on 17 December 2009 is applicable to all enlisted personnel serving on active duty in the Active Army, including the U.S Army Reserve and the Army National Guard/Army National Guard of the United States serving under Title 10, U.S. Code. This regulation sets 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. Readiness is promoted by maintaining high standards of conduct and performance. Chapter 18 (Failure to Meet Weight Control Standards) provides for the involuntary separation for enlisted personnel who fail to meet and maintain the body fat standards set forth in Army Regulation 600-9. It states enlisted personnel will be given a reasonable opportunity to meet the body fat standards. If there is no underlying medical condition and the enlisted person fails to make satisfactory progress in the program, then separation proceedings should be considered by the chain of command. The notification procedures commonly used within this regulation are also applicable to this chapter. The service of enlisted personnel separated under this chapter will be characterized as honorable. Battalion commanders are authorized to separate enlisted personnel under this chapter. 6. Title 38, U.S. Code, section 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, section 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 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it direct or recommend correction of military record(s) to remove an error or an injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. It begins its consideration of each case with the presumption of administrative regularity meaning what Army personnel did at the time of the Soldier’s or Veteran’s area of service was administratively correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005189 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1