IN THE CASE OF: BOARD DATE: 1 July 2022 DOCKET NUMBER: AR20210012486 APPLICANT REQUESTS: in effect, correction of his records to show he was medical retired, a personal appearance before the board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Line of Duty (LOD) Findings, dated 2 May 2018 * Legal Review of LOD, dated 7 May 2018 * Memorandum: Subject: Request for ADME Status, dated 20 August 2018 * Orders MM 8292-00009, dated 19 October 2018 * Fort Campbell WTB Adaptive Reconditioning Positive Profile, dated 15 November 2018 * Disability Evaluation System (DES) Commander’s Performance and Functional Statement, dated 25 October 2019 * Orders MM-8292-00009A03, dated 27 March 2020 * Department of Veterans Affairs (VA) Disability Assessment, dated 3 June 2020 * U.S. Army PEB, Formal Board Notification, dated 9 July 2020 * Oath of Extension of Enlistment or Reenlistment, dated 16 July 2020 * Memorandum of Understanding (MOU), dated 21 August 2020 * Memorandum: Subject: Statement of Medical Retention Processing, dated 22 September 2020 * Orders MM-0272-00019, dated 28 September 2020 * Medical documents * Physical Profile * Formal Physical Evaluation Board (PEB) Proceedings, dated 7 October 2020 * Memorandum: Subject: Appeal of Formal PEB Decision and Request for Reconsideration of Formal Board Results, dated 27 October 2020 * Email * Memorandum: Subject: Rebuttal of PEB Findings, dated 20 November 2020 * Orders 20-339-00028, dated 4 December 2020 * Email * Orders 21-019-00021, dated 19 January 2021 * Memorandum: Subject: Transfer to the Retired Reserve (20-Year Letter), dated 21 January 2021 * DA Form 5019 (Chronological Statement of Retirement Points), dated 5 February 2021 * Orders 041-0223, dated 10 February 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 15 March 2021 * VA Request for Hardship Determination, dated 14 May 2021 FACTS: 1. The applicant states: a. He was recently assigned to the Soldier Recovery Unit (SRU), . Somewhere along the way during his Integrated Disability Evaluation System (IDES) process, things started happening that impacted where he is today. b. He received a “positive profile” and participated in what is called the Army Reconditioning Program (ARP) within the limits of his positive profile and his regular profile. During a routine visit with SRU Physical Therapist in October 2020, his PT noted that he walked in with no apparent distress and that he participated in “Pickle Ball” for his required ARP activity. These words would come back to haunt him along with other notes in his records that were incorrect or not even looked into while at the SRU. Soldiers participate in ARP all the time, especially during the Warrior Games and he does not think that should get held against Soldiers. It’s supposed to be a therapeutic program. c. The result of that Physical Evaluation Board (PEB) Rebuttal denial was a 20 percent (%) rating and medical separation as opposed to medical retirement. He opted to waive the medical separation pay because it would have been offset from his Department of Veterans Affairs (VA) disability income and would have negated his ability to retire when he hits retirement age of 60 for a U.S. Army Reserve (USAR) retirement. d. He was not advised (or perhaps he forgot. He was in a motor vehicle accident and does not remember if he ever received treatment for his head injury) that exercising this option would only allow him access to the Tricare Retired Reserve for his family as opposed to Tricare Reserve Select. e. The Tricare Retired Reserve premiums are quite a bit higher. Sometime in January of 2021, his medical service corps person passed away. At that point, his VA paperwork may, or may not have been processed in the normal manner in the normal timeline. f. He departed the unit and had a retirement date of 15 March 2021, without an official DD Form 214 in hand. His DD Form 214 was signed on 24 March and was received by the VA on 28 April 2021. When he cleared the S1 at the SRU, he was not even sure why he was clearing so fast. His last paycheck was his final Army pay in March 2021. g. In April 2021, his file showed that his VA disability case as “pending”. He filed unemployment with the , but the backlog is incredible and there is no way to predict when that will start. A call to the VA Veterans Experience Office revealed that his VA disability claim is in the final approval stages as the VA did not get his DD Form 214 until 28 April 2021 and the processing time is 10-30 days. h. He had some assistance in completing a Hardship Form 10-10 HS and submitted it in the hopes that the VA would release any accrued benefit and not wait to pay until after the proposed rating is approved by the Veteran and returned by mail. Right now, he has a few people at the SRU assisting him. did everything to help. His is requesting an entire look at his case as he thinks there may have been medical documents not considered for treatment at the SRU and IDES process. 2. The applicant provides the following documentation: a. LOD Findings, dated 2 May 2018, shows while the applicant was in transit to a dental appointment, he was involved in a car accident on 19 February 2018, he was immediately transported to the Hospital in for stabilization and then transported via ambulance to the Medical Center for neurosurgical consultation. After multiple evaluations, doctors concluded he sustained a fractured lumbar vertebra (L1). He was treated conservatively and fitted with a custom back brace that he is required to wear at all times. After spending four days in the hospital, he was released to the care of his wife with physical restrictions and no ability to return to work. b. Legal Review of LOD, dated 7 May 2018, found no errors and determined the investigation was supported by substantial evidence. He was on inactive duty for training, traveling to his annual dental examination. c. Memorandum: Subject: Request for active duty medical extension (ADME) Status, dated 20 August 2018, shows he was counseled about the relevant WTU program and the Incapacitation Pay (INCAP) program, and he desired to return to active duty. He was recommended to enter on active duty under the provisions of the ADME program. d. Orders MM 8292-00009, dated 19 October 2018, shows he was ordered to active duty on 30 October 2018 for 179 days for the purpose of initial ADME. e. Fort Campbell WTB Adaptive Reconditioning Positive Profile, dated 15 November 2018, states he was recommended for swimming, archery, pickleball, field events (at his own pace), and indoor cycling. f. DES Commander’s Performance and Functional Statement, dated 25 October 2019, states, “SM is assigned to the Ft Campbell WTB, therefore as his commander, I have only observed SM in an administrative and medical environment. During the time I’ve observed SM, I believed the SM would not be able to perform all of the MOS duties required Cavalry Scout (MOS 19D)” and “According to Soldier TRIAD of Care, the SM’s injuries prevents him from performing basic Soldier skill and tasks such as the APFT, foot march, shoot a rifle in the prone position and possible other positions as well. He is unable to wear essential protective gear such as body armor and helmet preventing him from participating in most unit training or deploying to locations where such gear is required.” g. Orders MM-8292-00009A03, dated 27 March 2020, shows his original orders were amended to change his end date from 18 April 2020 to 14 October 2020. h. VA Disability Assessment, dated 3 June 2020, shows the VA proposed a total combined rating for service-connected disabilities for 60%. This document does not list his disabilities. However, his rating was based on his claim dated 29 October 2019 i. PEB, Formal Board Notification, dated 9 July 2020, shows the applicant was scheduled for a telephonic formal board hearing before the PEB on 7 October 2020. j. Oath of Extension of Enlistment or Reenlistment, shows he extended his enlistment on 16 July 2020, for a period of 6 months from 18 October 2020 to 18 April 2021. k. MOU, dated 21 August 2020, states: (1) “At Soldier Recovery Unit, personally appeared before me, the undersigned, authorized by law to administer oaths pursuant to the Uniform Code of Military Justice, Article 136, one [applicant], who after being advised by me of the rights and advantages of remaining in an active duty status in the Army beyond the scheduled date of release for the purpose of completion of hospital care and/or physical disability evaluation under the provisions of Chapter 61, Title 10 USC, and after being duly sworn, deposes and says: (2) I [Applicant], have been fully advised by the undersigned officer of the rights and advantages that may accrue to me by voluntarily remaining on active duty in the Army beyond the scheduled date of my release for the purpose of completing hospital care and/or physical disability evaluation under the provisions of Chapter 61, Title 10 USC, and have been further fully advised that if 1elect to be discharged or released from active duty as scheduled, I will not after such discharge or release from active duty, be eligible for separation or retirement for physical disability. Wherefore, in consideration of the above, I do desire retention on active duty in the Army beyond the scheduled date of expiration of my term of service.” l. Memorandum: Subject: Statement of Medical Retention Processing, dated 22 September 2020, reflects a medical evaluation resulted in the following: * Medical Conditions: Low Back Pain with history L1 compression fracture * Approved for LOD for medical condition: Completed and in HAIMS * Medical condition requires definitive care with treatment lasting more than 30 days: Yes * Treatment plan expected result: IDES * Conditions impact on Soldiers PMOS/AOC: The Soldier’s condition results in him having a temporary profile and precludes deployment to an austere environment * Detailed current treatment plan: This patient came to the WTU in October 2018 with low back pain secondary to a lumbar compression fracture. He underwent numerous interventions and Orthopedics declared MRDP in August 2019. He was referred to IDES on 12 August 2019 and is awaiting completion of his PEB * Prognosis: Good m. Orders MM-0272-00019, dated 28 September 2020, shows he was retained on active duty for the purpose of participating in Reserve Component Soldier in Transition Army Recovery Care Program through Completion of Medical Care and Treatment Resident Extension, with an ending date of 11 April 2021. n. Medical documents, which will be reviewed and discussed by the medical staff at Army Review Board Agency o. Physical Profile, undated shows he received an permanent profile of “L3” for lower back injury/pain and for knee pain/injury (left) and a “E2” for mild decreased visual acuity (bilateral). p. Formal PEB Proceedings, dated 7 October 2020, shows the Board found him physically unfit and recommended a rating of 20% and the that he be separated with severance pay, for the following issues: * Lumbar spine status post L1 compression fracture with residual pain: 10% * Left knee degenerative arthritis, status post anterior cruciate ligament repair: 10% * He was found fit for all other conditions * He did not concur with the Board’s findings, did not request a reconsideration of his VA findings, and elected to transfer to the retired reserve in lieu of being separated for disability with severance pay q. Memorandum: Subject: Appeal of Formal PEB Decision and Request for Reconsideration of Formal Board Results, dated 27 October 2020, states, that although he agrees with the PEB’s unfitness findings for his lumbar spine and left knee, he asserts that his bilateral feet conditions are also unfitting. He also states that the severity of his post October 2020 right shoulder and bicep injury warrants an MTF return for an evaluation as to whether it meets medical retention standards. He included several treatments and provider statements that support his claim. r. Memorandum: Subject: Rebuttal of PEB Findings, dated 20 November 2020, states that the U.S. Army Physical Disability Agency reviewed the applicant’s appeal, dated 27 October 2020; however, they found insufficient medical evidence to find his additional conditions unfitting. Therefore, the findings of the PEB were affirmed. s. Orders 20-339-00028, dated 4 December 2020, shows he was reassigned in the Reserve Component to the Retired Reserve, with an effective date of 15 January 2021. t. Orders 21-019-00021, dated 19 January 2021, amended Orders 20-339-00028, to show his transfer to the Retired Reserve with an effective date of 15 March 2021 vice 15 January 2021. u. DA Form 5019 (Chronological Statement of Retirement Points), dated 5 February 2021, shows he completed 24 qualifying years for retirement. v. The applicant submitted a VA Request for Hardship Determination, dated 14 May 2021, for the expeditious back payments of his VA payments, due to a reduction of his household income and his out of pocket medical expenses which he incurred. 3. A review of the applicant's service record shows: a. DD Form 4 (Enlistment/Reenlistment Document) shows he enlisted in the Regular Army (RA) on 26 January 1994. b. DD Form 4 shows he reenlisted in the RA on 22 April 1997, shows he reenlisted for 3 years in the RA. c. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows on 25 September 1998, he was honorably released from active duty due to unsatisfactory performance. d. His record is void of his enlistment contract into the U.S. Army Reserve. e. Orders 140-0164, dated 20 May 2009, shows he was released from active duty, not by reason of physical disability on 30 May 2009. f. Memorandum: Subject: Transfer to the Retired Reserve (20-Year Letter), dated 21 January 2021, shows under the provisions of Army Regulation 635-2000, paragraph 4-27(7)(d)(1), the PEB has determined he is physically unfit and will be transferred to the Retired Reserve. g. Orders 041-0223, dated 10 February 2021, shows he was released from active duty on 15 March 2021 and was assigned to the USAR Control Group (Retired Reserve). h. DD Form 214 shows for the period ending 15 March 2021 he was honorably released from active duty, due to the completion of his required active service. He completed 2 years, 4 months, and 16 days of net active service this period, with 9 years, 2 months, and 10 days of total prior active service and 15 years, 6 months, 24 days of total prior inactive service. i. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. 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 (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant has applied to the ABCMR requesting an increase in his military disability rating with a subsequent change in his retirement, currently under 10 U.S. Code § 1209 - Transfer to inactive status list instead of separation, be changed to a retirement under 10 U.S. Code § 1201 - Regulars and members on active duty for more than 30 days: retirement. He states: “Relook at my entire case and the reason I was given a 20% Army rating.” b. The Record of Proceedings details the applicant’s service and the circumstances of the case. Orders published on 4 December 2020 by Headquarters of the 81st Readiness Division (USAR) show the applicant was transferred to the Retired Reserve effective 15 January 2021 after having completed 20 or more years of qualifying service for retired pay at age 60. c. A Soldier is referred to the Integrated Disability Evaluation System (IDES) when they have one or more conditions which appear to fail medical retention standards reflected on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldiers referred medical conditions in section I the VA/DOD Joint Disability Evaluation Board Claim (VA Form 21-0819). The Soldier, with the assistance of the VA military service coordinator, lists all other conditions they believe to be service connected disabilities in block 8 of section II of this form, or on a separate Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). d. Soldiers then receive one set of VA C&P examinations covering all their referred and claimed conditions. These examinations, which are the examinations of record for the IDES, serve as the basis for both their military and VA disability processing. The medical evaluation board (MEB) uses these exams along with AHLTA encounters and other information to evaluate all conditions which could potentially fail retention standards and/or be unfitting for continued military service. Their findings are then sent to the physical evaluation board for adjudication. e. All conditions, both claimed and referred, are rated by the VA using the VA Schedule for Rating Disabilities (VASRD). The physical evaluation board (PEB), after adjudicating the case, applies the applicable ratings to the Soldier’s unfitting condition(s), thereby determining his or her final combined rating and disposition. Upon discharge, the Veteran immediately begins receiving the full disability benefits to which they are entitled from both their Service and the VA. f. On 17 October 2019, the applicant was referred to the IDES for “Lumbar spondylosis with L1 compression fracture.” The term spondylosis is often used to describe degenerative arthritis (osteoarthritis) of the spine. The applicant claimed fourteen additional conditions on his separate Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). g. The applicant appealed the initial medical evaluation board (MEB) findings which had determined that only his lumbar spine condition failed medical retention standards. He requested that his left knee pain and bilateral foot pain also be determined to fail medical retention standards. h. The MEB subsequently determined the applicant had two conditions failed the medical retention standards of AR 40-501, Standards of Medical Fitness: “Lumbar spine status post L1 compression fracture with residual pain”, and “Left knee degenerative arthritis, status post ACL repair.” They determined eighteen other medical conditions met medical retention standards. The case, including his appeal and independent medical review request along with the results for each was then forwarded to a physical evaluation board (PEB) for adjudication. i. On 11 June 2020, the applicant’s informal PEB found the two conditions which failed retention standards to also be unfitting for continued military service. They found the eighteen remaining medical conditions not unfitting for continued service. j. The PEB applied the Veterans Benefits Administration (VBA) derived ratings of 10% and 10% respectively, and recommended the applicant be separated with disability severance pay. After being counseled by his PEB Liaison Officer (PEBLO) on the PEB’s findings and recommendations, he non-concurred with the PEB’s findings, maintaining that his bilateral foot conditions and right shoulder condition should also be found to be additional unfitting medical conditions. He declined a VA reconsideration of his disability ratings. k. The applicant was present for and represented by regularly appointed counsel at his formal PEB on 7 October 2020. After the presentation of evidence and testimony from the applicant, the board confirmed the informal PEB’s findings: (1) “Regarding the Soldier’s contention that his bilateral foot conditions (MEB diagnoses 14 thru 19) and right shoulder strain (no MEB diagnosis) are unfitting, the PEB finds insufficient medical evidence to find these conditions unfitting either independently or in combination with other conditions. The conditions meet retention standards and there are no profile restrictions listed on the DA 3349 for these conditions. (2) Although the Soldier testified that he has suffered from bilateral foot conditions for 11 years that have hindered his ability to perform his assigned duties, the preponderance of evidence in the available records, to include ALTHA treatment notes, Periodic Health Assessments, DA Form 3349-SG (Physical Profile Records), and Veteran's Administration Disability Benefits Questionnaires (DBQ's)/Compensation and Pension (C&P) exams do not support that these conditions are unfitting. (3) The most recent podiatry note, dated 14 July 2020 (Formal Board Exhibit Bravo), states that there is, "No obvious permanent damage or med boardable condition of the feet," and that the MRI was reviewed and the provider "did not see any area of thickening that would explain his symptoms or that I could correlate to areas of pain." (4) Additionally, based on the preponderance of evidence, his right shoulder injury, which the Soldier first sought treatment for on 06 October 2020, does not hinder the Soldier’s ability to reasonably perform the duties required by his rank and PMOS (19D, Cavalry Scout). (5) Although the medical evidence and the Soldier’s testimony supports that he has these conditions, the preponderance of evidence does not support these conditions as duty limiting, and therefore, the PEB finds insufficient objective medical evidence to reverse the findings of the Informal Board.” l. The applicant non-concurred with the formal PEB’s findings and appealed to the United States Army Physical Disability Agency. Citing evidence from the formal board along with further evidence and evaluation of the record, the Agency confirmed the findings of the formal PEB on 5 November 2020. m. Review of his Foot Conditions, including Flatfoot (Pes Planus) Disability Benefits Questionnaire confirms their decision was the correct conclusion. The examining provider documented the applicant reported no foot pain at the time of the examination, that upon examination there was no pain in either foot, and marked “No” to the question “Regardless of the Veteran's current employment status, do the condition(s) listed in the Diagnosis section impact his or her ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.)” n. Review of his AHLTA records confirms the formal PEB’s decision was correct in regards to his right shoulder condition. He was first seen for right shoulder pain on 7 October 2020 (the day of his formal board) at which time he reported “Pain in his right shoulder when he raises his arm laterally to shoulder height he experiences pain reported full range of motion with pain right shoulder. No clavicular tenderness or any tenderness to palpation of shoulder joint.” o. He was treated conservatively and referred to physical therapy. From his final right shoulder AHLTA encounter on 17 December 2020: “States that his steroid injection made his shoulder feel 100% better. He is only having some slight tightness with lifting his shoulder overhead and behind his back. He has had this for years.” p. Because the PEB had recommended the applicant be separated with disability severance pay for a disability rating of less than 30%, and he had more than 20 years of qualifying service for retirement, the applicant was offered and elected for retirement under 10 U.S. Code § 1209 rather than be separated with disability severance pay. Paragraph 4-27d(1) of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017): “10 United States Code 1209 election. Under the provisions of 10 USC 1209, Ready Reserve Soldiers who have completed at least 20 qualifying years of Reserve service and who would otherwise be qualified for retirement for non- regular service may forfeit disability severance pay and request transfer to the Inactive Status List for the purpose of receiving non-disability retired pay at age 60 or at the age otherwise authorized by law. The USAPDA extends this election to the Ready Reserve Soldier being separated without entitlement to severance pay with 20 qualifying years. The Soldier will be afforded the opportunity to make their election when making elections to PEB or USAPDA findings.” q. It is the opinion of the Agency Medical Advisor that neither an increase in his military disability rating nor a referral of his case to the DES is warranted. Thus, the applicant remains ineligible for retirement under 10 U.S. Code § 1201 as he does not meet any of the required criteria. Paragraph 4-27c(1) of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017): (1) Permanent disability retirement. This disposition is directed under 10 USC 1201 or 10 USC 1204, as applicable, when the Soldier is determined unfit for continued service and has a compensable disability in accordance with the standards of this regulation, and— (a) The disability(ies) are permanent and stable or, subject to the requirements in chapter 5 concerning certain mental diagnosis, the disability rating will not improve to less than 80 percent or - (b) The Soldier has at least 20 years of {active federal} service as computed under 10 USC 1208 (see DA Pam 635–40 for explanation of this computation) or - (c) The Soldier has a combined disability rating of at least 30 percent. BOARD DISCUSSION: 1. 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. 2. The Board carefully considered the applicants request, supporting documents, evidence in the records, and regulatory guidance. The Board considered the applicant's statement, the medical records, and the review and conclusions of the medical reviewing official. Based upon a preponderance of the evidence, the Board concurred with the medical reviewer’s finding of insufficient evidence the contested medical conditions failed to meet retention standards during his period of service. Therefore, the Board determined referral to DES for consideration of a medical retirement is not warranted. 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, 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. 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. 3. 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%. 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. 4. 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. 5. 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. 6. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. 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. 7. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation Process (PDES) and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. b. Chapter 4 provides guidance on referring Soldiers for evaluation by an MEB when a question arises as to the Soldier's ability to perform the duties of his or her office because of physical disability. 8. Army Regulation 40-501 (Standards of Medical Fitness) provides medical retention standards and is used by MEBs to determine which medical conditions will be referred to a PEB. Paragraph 3-3 states Soldiers whose medical conditions fail retention standards are to be referred to a PEB as defined in Army Regulation 635-40. The PEB will make the determination of fitness or unfitness. 9. Directive-Type Memorandum (DTM) 11-015 (Integrated Disability Evaluation System (IDES)), (in effect for a portion of the time and then, effective 5 August 2014, incorporated into the Department of Defense (DOD) Manual 1332.18 (IDES)), prescribes policies and procedures for the processing of Soldiers with duty-related disabling medical conditions. a. IDES is a joint DOD and a Department of Veterans Affairs (VA) process by which it is determined if Soldiers who have been wounded, ill, or injured are fit for continued military service. A military medical provider refers a Soldier with disabling medical conditions to IDES, the VA provides the medical examinations, and, based on the VA's compensation and pension examinations, an MEB makes an assessment to identify those medical conditions that fail medical retention standards. All failing conditions are referred to a PEB for a fitness determination. b. Conditions found by the PEB to be unfitting are sent to VA for a disability rating. After the VA assigns disability rating(s), the results are finalized. Disposition can include the Soldier being returned to duty or separated (either with severance pay, if the total disability rating is 20 percent (%) or less, or retired, for those cases where the disability rating is 30% or higher). 10. Army Regulation 635-5-1 (Separation Program Designator (SPD)), states the narrative reason for separation will be entered in block 28 of the DD Form 214 exactly as listed in tables 2–2 or 2–3 of this regulation. No deviation is authorized. Table 2-3 (Involuntary Discharge) for enlisted members shows the SPD code as JEB for Disability, Severance Pay, non-combat related (enhanced). 11. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//