IN THE CASE OF: 

		BOARD DATE:  13 January 2022

		DOCKET NUMBER: AR20210006527


APPLICANT REQUESTS: in effect, physical disability retirement in lieu of physical
disability separation with severance pay, through the addition of an unfitting condition
and an increased disability rating.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 293 (Application for Review of Discharge)
*	Medical Record (13 pages)
*	Department of Veterans Affairs (VA) Benefits Summary

FACTS:

1. The applicant states since his medical separation he has been evaluated by the VA 
and his medical disability has increased to 70 percent and a medical retirement status 
due to the following findings: Sleep Apnea.  He would like to be further evaluated by the 
United States Army based on the VA medical findings and be reconsidered for United 
States Army medical retirement.

2. The applicant enlisted in the United States Army Reserve on 11 December 2014 for a 
period of 8 years in the delayed entry program (DEP).  He was discharged from the 
DEP, enlisting in the Regular Army for a period of 3 years and 16 weeks on 2 February 
2015.  He was awarded the military occupational specialty (MOS) 12B (combat 
engineer).  

3. The applicant reenlisted in Regular Army on 8 March 2017 for a period of 4 years.  

4. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows:

	a. An Informal PEB convened on 13 September 2017, and found the applicant 
physically unfit for residuals left shoulder rotator cuff tendonitis status post-surgery.

b. The PEB recommended a rating of 20 percent and the applicant’s disposition be 
separation with severance pay.  

	c. The applicant was found fit for the following conditions corresponding to Medical 
Evaluation Board (MEB) diagnoses 2 - 4 because the MEB indicated these conditions 
met retention standards, did not cause any profile limitations, and did not indicate 
performance issues were due to these conditions:  

*	bilateral sensorineural hearing loss
*	bilateral tinnitus
*	thoracic strain

5. The applicant was honorably discharged on 27 December 2017 under the provisions 
of AR 635-40, chapter 4-24 for disability, severance pay, non-combat (enhanced).  His 
DD Form 214 shows his separation code as JEB.  

6. The applicant provided:  

	a. A medical record showing he underwent a sleep study and was diagnosed with 
obstructive sleep apnea.  

	b.  A VA Summary of Benefits showing his service connected rating of 70 percent 
effective 1 January 2021. It does not list the applicant’s rated conditions.  

7. 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.

8. 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. 

9. 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.

10. 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. 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.

11. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) 
prescribes the policies and procedures for correction of military records by the Secretary 
of the Army acting through the ABCMR. The ABCMR begins its consideration of each 
case with the presumption of administrative regularity. The applicant has the burden of 
proving an error or injustice by a preponderance of the evidence.

12. MEDICAL REVIEW:  The Army Review Boards Agency (ARBA) Medical Advisor 
was asked to review this case. Documentation reviewed included the applicant’s 
ABCMR application and accompanying documentation, the military electronic medical 
record (AHLTA), the VA electronic medical record (Joint Legacy Viewer (JLV)), the 
electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History 
and Readiness Tracking (MEDCHART) application, and the Interactive Personnel 
Electronic Records Management System (iPERMS).  The ARBA Medical Advisor made 
the following findings and recommendations: 

     a.  On 21 June 2017, the applicant was referred to the Integrated Disability 
Evaluation System (IDES) for left shoulder tendonitis.  The applicant claimed three 
additional conditions on a separate Application for Disability Compensation and Related 
Compensation Benefits (VA Form 21-526EZ): upper back condition, right ear hearing 
loss, and right ear tinnitus.   A MEB determined the referred condition failed the medical 
retention standards of AR 40-501, Standards of Medical Fitness.  They determined the 
three other medical conditions met medical retention standards.  On 10 August 2017, 
the applicant concurred with the MEB’s findings and his case was forwarded to a PEB 
for adjudication.

     b.  On 13 September 2017, the applicant’s informal PEB found his “Residuals left 
shoulder rotator cuff tendonitis status post-surgery” to be the sole unfitting condition for 
continued military service.  They found the three remaining medical conditions not 
unfitting for continued service.  The PEB applied the Veterans Benefits Administration 
derived rating of 20% and recommended the applicant be separated with disability 
severance pay.  On 18 September 2017, after being counseled by his PEB Liaison 
Officer on the PEB’s findings and recommendations, the applicant concurred with the 
PEB’s finding and waived a VA reconsideration of his ratings. 

     c.  Review of the his PEB case file in ePEB along with his encounters in AHLTA 
revealed no substantial inaccuracies in or discrepancies.

     d.  Submitted medical documentation shows he was diagnosed with mild to 
moderate sleep apnea following a sleep study on 31 May 2018.

     e.  His records in JLV show he has been awarded multiple service connected 
disability ratings, including one for sleep apnea.  However, the DES compensates an 
individual only for service incurred condition(s) which have been determined to 
disqualify a Soldier from further military service.  The DES has neither the role nor the 
authority to compensate service members for anticipated future severity or potential 
complications of conditions which were incurred during or permanently aggravated by 
their military service.  These roles and authority are granted by Congress to the VA and 
are executed under a different set of laws.

     f.  Given no evidence of error or injustice, it is the opinion of the ARBA Medical 
Advisor that neither an increase in his military disability rating nor a referral of his case 
back to the IDES is warranted.  


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found relief is not warranted. 

2.  The Board concurred with the conclusion of the ARBA Medical Advisor that there is 
no evidence that would support increasing the applicant's military disability rating or 
referring his case back to IDES for reconsideration.  Based on a preponderance of 
evidence, the Board determined the applicant's discharge for disability with severance 
pay was not in error or unjust.




BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XX	:XX	: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 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.

2. Title 38, U.S. Code, Section 1131 (Peacetime Disability Compensation - Basic 
Entitlement) 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.

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 (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.

4. Department of Defense (DoD) Directive-Type Memorandum (DTM) 11-015 (Disability 
Evaluation System) explains the Integrated Disability Evaluation System (IDES). The 
version in effect at the time defined the IDES process and procedures. The guidelines 
within the DTM were incorporated in the DoD Manual Number 1332.18 (DES Manual: 
General Information and Legacy DES Time Standards).   

	a. The IDES is the joint DoD-VA process by which DoD determines whether 
wounded, ill, or injured Service members are fit for continued military service and by 
which the DOD and the VA determine appropriate benefits for Service members who 
are separated or retired for a Service-connected disability. The IDES features a single 
set of disability medical examinations appropriate for fitness determination by the 
Military Departments and a single set of disability ratings provided by the VA for 
appropriate use by both departments. Although the IDES includes medical 
examinations, IDES processes are administrative in nature and are independent of 
clinical care and treatment.

	b. Unless otherwise stated in this DTM, DOD will follow the existing policies and 
procedures promulgated in DOD Directive 1332.18 (Disability Evaluation System (DES)) 
and the Under Secretary of Defense for Personnel and Readiness Memoranda. All 
newly-initiated, duty-related physical disability cases from the Departments of the Army, 
Air Force, and Navy at operating IDES sites will be processed in accordance with this 
DTM and follow the process described in this DTM unless the Military Department 
concerned approves the exclusion of the Service member due to special circumstances.  
Service members whose cases were initiated under the legacy DES process will not 
enter the IDES.

	c. IDES medical examinations will include a general medical examination and any 
other applicable medical examinations performed to VA compensation and pension 
(C&P) standards. Collectively, the examinations will be sufficient to assess the 
member’s referred and claimed condition(s) and assist the VA in ratings determinations 
and assist military departments with unfit determinations.

	d. Within 15 days of receiving the proposed disability ratings from the Disability 
Rating Activity Site (D-RAS), the PEB will apply the rating using the diagnostic code(s) 
provided by the D-RAS to the Service Member’s unfitting conditions and publish the 
disposition recommendation. For example, if the PEB identifies a condition to the 
D-RAS as “schizophreniform disorder”, but the D-RAS rates the condition as “psychotic 
disorder NOS (VASRD 9210), the PEB will apply the rating as “schizophophreniform 
disorder rated as psychotic disorder NOS (VASRD 9210).

	e. Upon separation from military service for medical disability and consistent with 
Board for Corrections of Military Records (BCMR) procedures of the Military Department 
concerned, the former Service member (or his or her designated representative) may 
request correction of his or her military records through his or her respective Military 
Department BCMR if new information regarding his or her service or condition during 
service is made available that may result in a different disposition. For example, a 
veteran appeals the VA’s disability rating of an unfitting condition based on a portion of 
his or her service treatment record that was missing during the IDES process. If the VA 
changes the disability rating for the unfitting condition based on a portion of his or her 
service treatment record that was missing during the IDES process and the change to 
the disability rating may result in a different disposition, the Service member may 
request correction of his or her military records through his or her respective Military 
Department BCMR.  

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. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or 
Separation) 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 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.

     b. 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. 

     c. 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.

     d. 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. 

     e. The physical evaluation board 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. 

     f.  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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210006527


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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