IN THE CASE OF: BOARD DATE: 3 February 2022 DOCKET NUMBER: AR20210013559 APPLICANT REQUESTS: * a physical disability retirement * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement (4 pages) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Leave and Earnings Statement (LES) dated 10 September 2010 * Line of Duty (LOD) Email dated 8 February 2011 * DA Form 2173 (Statement of Medical Examination and Duty Status) * Workplace and Gender Relations Survey Letter dated 6 April 2012 * Two Congressional Letters * Line of Duty Determination Decision dated 13 May 2013 * Office of the Inspector General (IG) Letter dated 29 June 2013 * Email from Spouse dated 1 August 2013 * Command Response to Spouse dated 2 August 2013 * Two USAR G1 Letters * Article 138 Complaint dated 22 November 2013 * Physical Disability Separation Memorandum dated 7 July 2014 * DA Form 5892 (PEBLO Estimated Disability Compensation Worksheet) * Orders D 188-01 dated 7 July 2014 * Incapacitation Claim Email dated 14 April 2014 * Denial of Incapacitation Clam dated 8 September 2014 * Department of Veteran Affairs Documents * Social Security Administration Documents * Complaint Against California Attorneys Documents * Housing Discrimination Complaint Documents * Bankruptcy Documents * Two Handwritten Letters of Complaints * Nine References FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he is requesting a 100% physical disability retirement from his U.S. Army Reserve (USAR) unit in California. a. He is unaware of any retirement benefits he may be receiving because he is not allowed to return to the unit and check the status. There has been a lack of communication with the unit for the last ten years. His delay in submitting to the Board is as a result of his disputes with Nissan, the City of Costa Mesa, CA, bankruptcy, grievances, and congressional complaints, in addition to CA Bar complaints. b. The applicant’s self-authored statement is available for review by the Board. He further outlines in part he has submitted over half a dozen DD Forms 149; however, many challenges have been presented to include his vehicle repossession in 2013. He believes although it does not have an impact on the case at hand, he should have been protected by the Servicemembers Civil Relief Act (SCRA). He has been working with lawyers, congressional representatives, the Under Secretary of Defense, and the Internal Revenue Service (IRS) to gain those protections. The family requested delays in late payments from Nissan Motors as the Defense Finance and Accounting Service (DFAS) payments were slow due to furloughs in the USAR. His requests were ignored and caused his family undue hardships. c. He is asking the Board to consider his Army disability retirement appear and raise his rating from 10% to 50% or 100% since he is unable to check on his claim with USAR. The Reserve unit is located in the city center and he has ongoing disputes with the City of Costa Mesa. He is not allowed to check on the matter and has exhausted all other means prior to going after recovery of his “vehicle.” Much of the interference has been directed towards his family to “stop, effect, or misdirect the information from reaching its intended purpose.” 3. The applicant provides: a. The below listed documents to be referenced in his service record: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Physical Disability Separation Memorandum dated 7 July 2014 * DA Form 5892 (PEBLO Estimated Disability Compensation Worksheet) * Orders D 188-01 dated 7 July 2014 * Denial of Incapacitation Clam dated 8 September 2014 b. A LES, dated 10 September 2010, wherein the applicant underlined he was on active duty for training (ADT) from 9 August 2010 to 13 August 2010. c. An email, dated 8 February 2011, providing guidance on submitting the LOD for the applicant with a suspense date of 11 February 2011. d. A DA Form 2173, dated 6 February 2012, showing the applicant and his passenger were struck from behind by two Soldiers following on 11 August 2010. The physician noted the applicant’s back was injured and it could result in permanent partial disability since the applicant had experienced chronic lower back pain since the incident. The unit commander indicated a formal line of duty investigation was required and the injury was considered to have been incurred in the line of duty. e. A Workplace and Gender Relations Survey letter, dated 6 April 2012, notifying the applicant he was selected to participate in a survey that would ask for his opinion on a variety of topics related to his military service. f. Two congressional letters from the Honorable DR notifying the applicant: * 10 April 2012 – an inquiry was sent regarding his problems with the USAR * 5 October 2012 – a response had been received from the USAR g. An LOD Determination decision, dated 13 May 2013, which indicated the applicant’s diagnosis for “lumbar spine disc herniation” that occurred on 11 August 2010 during ADT was approved and enclosed. h. An IG letter, dated 29 June 2013, responding to the applicant’s request for assistance on 31 May 2013 regarding difficulties with his command in the processing of his LOD, medical board, and separation. It appeared the applicant was receiving assistance from numerous people and the battalion leadership had been addressed on issues of climate and ethical treatment of Soldiers at the company. i. An email from the applicant’s spouse to Sergeant (SGT) EBB, dated 1 August 2013, asking questions regarding guidance provided to her spouse and notifying them she would be calling with the car loan “people” and they were to make themselves available. j. An email response to the applicant’s spouse from the command, dated 2 August 2013, requesting she engage only the battalion commander on future correspondence. k. Two letters from the USAR G1 to the Honorable DR: * 17 September 2013 – the LOD was approved and attached * 11 October 2013 – the applicant’s incapacitation claim was incomplete because the applicant had not provided all required documentation l. An Article 138 complaint, dated 22 November 2013, from the applicant against his command for the improper display of the applicant’s photos as a security risk without proper counseling or notification. m. An email, dated 14 April 2014, notifying the applicant his incapacitation claim was incomplete and two additional items were required, his verification of income and medical documentation to support his claim. n. VA documents: * 14 April 2003 – Honorable ABF response to assistance with the VA, he submitted an inquiry * 20 May 2019 – letter from VA indicating the applicant had a medical condition requiring frequent use of restroom with no restrictions * 11 December 2019 – Progress Notes for visit due to right inguinal hernia and light duty assigned until 6 January 2020 o. SSA documents: * 15 February 2021 – request for additional documentation in support of request for disability payments * 14 October 2021 – applicant required to undergo medical exam in support of the disability benefits claim, location, date, and time of exam identified p. Complaint against California attorneys documents: * Scheduled Mediation Confirmation for a non-binding mediation on 14 May 2012 at 1:30 pm * The State Bar of CA Attorney Complaint Form – complaint against MP and LL for revoking his healthcare and twisting evidence * two Bar of CA letters o 27 June 2013 - unclear of applicant’s complaint o 1 August 2013 - file was closed as attorney declined representation * Honorable ADS notified applicant on 6 December 2016 his request for assistance would be referred to Honorable DR * three Bar of CA letters o 23 January 2020 – no new allegations or evidence to merit reopening complaint o 2 April 2020 – acknowledged receipt of 1 April 2020 letter; unsure of purpose o 12 May 2020 – acknowledged receipt of 8 May 2020 letter, unsure of purpose * State of California – Department of Justice (DOJ) response to 7 July 2020 correspondence indicating they were unable to assist as the matter was outside of their jurisdiction q. Housing Discrimination Complaint documents: * 17 April 2015 – Notice to Quit Nuisance/Illegal Activity for applicant and spouse * 4 June 2015 – invitation to renew lease * 7 August 2015 – Notice to Permanently Perform Covenant or Quit (service dog attacked resident) * Applicant’s Response with service dog’s vaccination records and letter from VA confirming the requirement for a service dog * 27 August 2015 – letter from U.S. Department of Housing and Urban Development requesting applicant sign and date his complaint request * 27 August 2015 – Housing Discrimination Complaint alleging discrimination based on disability * 9 July 2016 – letter from applicant referencing law that prohibits his removal from the property * 20 July 2016 – letter from U.S. Department of Housing and Urban Development notice that CA Department of Fair Employment and Housing would resolve the complaint informally or initiate an investigation * 25 July 2016 – Department of Fair Employment and Housing letter notifying the applicant to respond if he desired mediation or provide specific requests r. Bankruptcy documents: * Chapter 7 Discharge of Debtor dated 5 May 2014 * list of debts by attorney * 2 December 2020 – letter from Nissan indicating applicant did not identify 30 consecutive days of active duty at the time of repossession s. Two handwritten letters for complaints filed against the city: * 16 February 2021 – letter for Chief regarding police officer VB misconduct * 8 June 2021 – letter for Costa Mesa Mayor on abuse of his power t. Nine references cited regarding laws, policies, and/or articles throughout complaints: * Disability Discrimination Fact Sheet (Fair Housing Fact Sheet) * Title page – 3 Tours, 2 Purple Hearts, 1 Eviction Notice * Unknown Image (dark) * Title page – Rejection of Keystone efforts new * Page 1 Only Article – Righeimer and Mensinger agree to $607,500 settlement of lawsuit against Costa Mesa police union and former law firm * Two Fifth Amendment Excerpts * SCRA Benefits Page * United States Code Excerpts and Department of Defense Directive * Excerpts from The Army Lawyer – DA Pam 27-50-3114 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 20 February 2003. b. His foreign service includes: * Korea from 2 September 2003 to September 2004 * Afghanistan from 13 April 2005 to 12 April 2006 c. Orders 136-0308, dated 16 May 2006, released the applicant from active duty not by reason of physical disability and assigned him to the USAR Control Group effective 31 May 2006. d. He was honorably released from active duty on 31 May 2006. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 3 months, and 11 days of active service. He was assigned separation code MBX and the narrative reason for separation listed as “Completion of Required Active Service.” e. His DD Form 4 (Enlistment/Reenlistment Document) shows he reenlisted in the USAR with an effective date of 5 December 2010 for a period of 6 years. f. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) showed on 9 June 2014, an informal PEB convened and found the applicant physically unfit. The PEB recommended a rating of 10% and the applicant’s disposition be separation with severance pay. The sole disabling condition was identified as lumbar intervertebral disc syndrome. On 20 June 2014, the applicant concurred with the findings, waived a formal hearing of his case, and did not request reconsideration of his VA ratings. Section IV (Medical Conditions Determined Not to be Unfitting) identified the following conditions determined to meet retention standards: * chronic cervical neck strain (mild stabilized) * right foot mild hallux valgus * right foot mild plantar fasciitis * left foot mild hallux valgus * left foot mild plantar fasciitis * right hand s/p distal fifth metacarpal fracture, healed * chronic adjustment disorder w/mixed disturbance of anxious & depressed mood * left lower extremity nerve condition * heart condition * left hip condition * left thigh condition * bowel condition * bladder incontinence * erectile dysfunction * chronic fatigue g. On 7 July 2014, the applicant’s command was notified the applicant’s discharge was approved and a copy of his discharge orders provided. h. A DA Form 5892 outlined the applicant’s estimated compensation based on 10 years and 4 months of service with a 10% disability rating. i. Orders D 188-01, dated 7 July 2014, honorably discharged the applicant from the USAR with a 10% disability rating effective 11 August 2014. 5. On 27 January 2019, an advisory opinion was rendered in the processing of his case, ABCMR Docket Number AR20170018540, for incapacitation pay. The advisory official opined that the documents provided demonstrated the applicant did have a service connected medical condition; however, he did not provide clear and convincing evidence for the payment of incapacitation pay. On 8 September 2014, the approving authority denied the applicant’s request due to his performance of military duties during the period which restricts the payment of Tier 1 Incapacitation Pay. The approving authority reviewed the case for authorization of Tier 2 Incapacitation Pay but was unable to approve Tier 2 due to the applicant’s inability to demonstrate lost civilian wages. A copy of the 8 September 2014 letter is available for review by the Board. The ABCMR denied the applicant’s request for incapacitation pay on 18 June 2021. 6. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 7. By regulation (AR 40-501), medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects are causes for rejection or medical unfitness for these specialized duties. If the profile is permanent the profiling officer must assess if the Soldier meets retention standards. Those Soldiers on active duty who do not meet retention standards must be referred to a medical evaluation board. 8. By regulation (AR 635-40), the Army disability system sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. The regulation states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 9. 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. 10. 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. 11. 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. 12. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the 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. 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, a separate Statement in Support of Claim (VA Form 21-4138), or on a separate Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). b. Soldiers then receive one set of VA Compensation and Pension (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. c. All conditions, both claimed and referred, are rated by the Veterans Benefits Administration (VBA) using the VA Schedule for Rating Disabilities (VASRD). The 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 VBA. d. The applicant was referred to the DES for “Severe lower back pain from a herniated disc” on 26 July 2013. The applicant claimed eleven additional conditions on a separate Statement in Support of Claim (VA Form 21-4138). The MEB determined his “Intervertebral Disc Syndrome of the Lumbar Spine” did not meet the medical retention standards of AR 40-501, Standards of Medical Fitness; and that fifteen medical conditions met medical retention standards. The applicant agreed with the MEB’s findings and recommendation on 11 November 2013 and his case was forwarded to a PEB for adjudication. e. When the informal PEB convened on 9 June 2014, they determined that his lumbar condition was unfitting for continued military service. They determined the remaining fifteen conditions were not unfitting for continued military service. The Board made the administrative determination the condition was not combat related. They applied the VBA derived ratings of 10% and recommended the applicant be separated with disability severance pay. On 20 June 2014, after being counseled on the informal PEB’s findings by his PEB Liaison Officer, the applicant concurred with the informal PEB’s findings, waiving his right to a formal hearing and declining a VA reconsideration of his disability rating. f. The Back (Thoracolumbar Spine) Conditions C&P Examination along with the VBA's ratings were reviewed. This condition was coded using the VA Schedule for Rating Disabilities’ (VASRD) diagnostic code 5243 – Intervertebral disc syndrome. Because the basis for rating using diagnostic code 5243 is the frequency of incapacitating symptoms, and the applicant had no such episodes during the preceding 12 months, his condition was rated using the general rating formula for diseases and injuries of the spine. This ratings scale for lumbar conditions is the same for a variety of lumbar condition and it is based on range of motion. The 10% rating the applicant received and the next two higher ratings are based on these findings: (1) Forward flexion greater than 60 degrees but not more than 85 degrees; or combined range of motion greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour ………10% (2) Forward flexion between 30-60 degrees; or combined motion is less than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour …………………. 20% (3) Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine ....... 40% g. Review of his C&P examination shows him to have had a forward flexion of 75 degrees and a combined ROM of 160 degrees. These findings would yield a 10% rating. Thus, his 10% rating was correct. h. Review of his ePEB case file and records in AHLTA revealed no material discrepancies or errors. i. Review of his records in JLV confirms he has been awarded multiple VA service connected disability ratings. However, the DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her 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 or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authority were granted by Congress to the VA and are executed under a different set of laws. 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. The Board found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board concurred with the conclusion of the ARBA Medical Advisor that there is no evidence of material discrepancies or errors in the applicant's disability evaluation processing. The Board determined the applicant's discharge with severance pay based on his 10% disability rating 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 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 ABCMR determines it would be in the interest of justice to do so. 2. 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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 5. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 6. 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 raring 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. 7. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 8. 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. 9. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210013559 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1