IN THE CASE OF:  
BOARD DATE:  19 August 2022 
DOCKET NUMBER: AR20210015652 


APPLICANT REQUESTS:  a medical retirement. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record)

•Self-Authored Statement

•Three DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report)

•Physical Disability Information Report (PDIR)

•DD Form 214 (Certificate of Release or Discharge from Active Duty)

•Department of Veterans Affairs (VA) Letter, 1 October 2021

•List of Rated Disabilities



FACTS: 

1.The applicant did not file within the three-year time frame provided in Title 10, UnitedStates Code, section 1552(b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states he is seeking a medical retirement. He proudly served in theU.S. Army for over 19 years and was processed out of the military for medical reasons.He asked if it was considered a medical retirement and was informed that the VAhandles that. He recently learned after speaking with a retired first sergeant (1SG) theArmy and VA are two separate entities. He called the VA to confirm and was told the1SG was correct. The lady at the VA reviewed his record and shared with him that shecould not understand why the medical board did not review all of his injuries andmedically retire him or just let him complete his last ten months to retire. His letterserves as official notice for his request for a medical retirement effective the date of hishonorable discharge.

3.The applicant provides:

a.The below listed documents to be referenced in the service record:

•Three DA Forms 2166-8 (NCOER)

•PDIR

•DD Form 214 effective 19 April 2005



b.A VA letter, dated 1 October 2021, certified the applicant was discharged fromthe U.S. Armed Forces for two honorable periods of service. 

c.A list of rated disabilities included the following:

•right shoulder condition – not service connected

•post-traumatic stress disorder (PTSD) – 70%

•bilateral flat feet – 30%

•right knee Baker’s cyst – not service connected

•left knee Baker’s cyst – not service connected

•left foot arthritis – not service connected

•right foot arthritis – not service connected

•bilateral hearing loss – 0%

•status post bilateral inguinal hernia repair – 0%

•dyshidrosis, left foot – 0%

•dyshidrosis, right foot – 0%

•status post appendectomy – 0%

•right elbow lateral epicondylitis (dominant) – 0%

•nephrolithiasis – 0%

•left elbow lateral epicondylitis (non-dominant) – 0%

•L4-L5 disc protrusion and facet arthrosis, status post L4 laminectomy, partialL3/L4 laminectomies and foraminotomies – 20%

•degenerative disc disease (DDD) with degenerative joint disease cervicalspine – 20%

•head numbness – not service connected

•left upper extremity radiculopathy – 20%

•right upper extremity radiculopathy – 20%

•patellar chondromalacia and fat pad syndrome right knee – 10%



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

a.Having had prior service in the U.S. Army Reserve (USAR), he enlisted in theRegular Army on 7 July 1986. 

b.A Standard Form 88 (Report of Medical Examination), dated 1 July 1986, showsthe applicant was undergoing an examination for the purpose of enlistment. The applicant’s clinical evaluation was marked normal and in Block 77 (Examinee), he was marked qualified for service. 
c.His Enlisted Record Brief does not identify his deployment; however, his DDForm 214 shows he served in Afghanistan from 1 December 2002 to 20 June 2003. 

d.The applicant’s NCOERs for the below periods show the following ratings:

•June 2002 to March 2003 – rated among the best and senior rated 1/1

•April 2003 to June 2003 – rated among the best and senior rated 1/1

•July 2003 to December 2003 – rated among the best and senior rated 1/1

•January 2004 to November 2004 – rated fully capable and senior rated 2/2



e.The Commander’s Performance Statement, dated 26 October 2004, indicated theapplicant’s medical conditions began in 2001. He injured his back during an airborne operation at Ft. Bragg, NC and has reinjured his back during operational deployment in 2003. He completed an APFT in May 2004. He has received care for his back to include steroids and physical therapy, but it has only offered temporary relief. The applicant has been a valuable asset to the unit; however, his physical limitations prevented him from performing many Soldier tasks. It would be unthinkable to deploy him to an area of combat operations in his condition. Due to the continuing pain he suffers and the inability to perform his duties, he recommends the applicant be released from duty. 

f.The applicant’s DA Forms 705 (Army Physical Fitness Test Scorecard) show theapplicant was on profile for push-ups during the three listed record APFT periods: 

•20 August 2002

•9 September 2003

•25 May 2004



g.The service record includes the applicant’s medical evaluations for the purpose ofa medical board which indicated he had recurrent back pain, bilateral knee pain, shoulder surgery, high blood pressure, appendix, and double hernia, among other challenges. The physician noted in Block 74a (Examinee/Applicant) the applicant was not qualified for service and further recommended medical evaluation board (MEB)/physical evaluation board (PEB). 

•DD Form 2807-1 (Report of Medical History) dated 2 December 2004

•DD Form 2697 (Report of Medical Assessment) dated 2 December 2004

•DD Form 2808 (Report of Medical Examination) dated 20 January 2005



h.A Specialty Care Consult for MEB, shows the applicant underwent a physicalexamination on 13 January 2005 and a second examination on 24 January 2005. 

i.An MEB Narrative Summary (NARSUM) shows the applicant was referred byOrthopaedics and Neurology for chronic lower back pain with intermittent bilateral legal numbness and tingling, in addition to chronic left shoulder pain with overhead use and lifting. 

j.A DA Form 3947 (Medical Evaluation Board Proceedings) shows an MEBconvened on 2 February 2005 to consider the applicant’s chronic lower back pain with bilateral radiculopathy and irritable left shoulder status post (s/p) SLAP lesion decompression. The applicant was referred to a PEB and he concurred with the MEB findings and recommendation on 23 February 2005.   

k.A DD Form 3349 (Physical Profile), approved on 23 February 2005, shows theapplicant was issued a permanent profile rating of 3 for upper and lower extremities due to chronic lower back pain with HNP L4-5 and irritable left shoulder s/p SLAP lesion decompression. Block 4c (Does the Soldier Meet Retention Standards IAW Chapter 3, Army Regulation 40-501) was marked “No” and indicated the applicant needed an MEB/PEB. 

l.A letter from the PEB President, dated 3 March 2005, which states the PEB wasunable to adjudicate the case because the applicant had over 18 years of active duty. Per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 6-5b, Soldiers with that much time must state in writing their desire to not remain on active duty. The statement must be provided so that the PEB may adjudicate the case. 

m.A statement from the applicant, received on 8 March 2005, wherein the applicantindicated he declined his option for applying for Continuation on Active Duty (COAD) and expressed his desire to be separated from the military.  

n.A DA Form 199 (Physical Evaluation Board Proceedings) shows on 14 March2005, a PEB convened and found the applicant physically unfit. The PEB recommended a combined rating of 10% and the applicant’s disposition be separation with severance pay. The unfitting conditions included chronic lower back pain from airborne operations (VASRD Code 5237) rated at 10% and left shoulder pain with arthroscopic debridement of a SLAP lesion (VASRD Codes 5099-5003) rated at 0%. On 21 March 2005, the applicant concurred with the findings and waived a formal hearing of his case.  Additionally, the PEB made the following findings in Block 10: 

•the disability disposition is based on disease or injury received in the line ofduty as a direct result of armed conflict or caused by an instrumentality of warand incurred in line of duty during a period of war as defined by law

•disability did result from a combat related injury as defined 26 USC 104



o.A Physical Disability Information record shows the applicant received a 10%disability rating and his date of separation was identified as no later than 23 June 2005. 
p.The applicant’s medical records are included for treatment received fromapproximately 10 December 2004 through 26 January 2005 with his listed medication profile. 

q.Orders 115-0255, dated 25 April 2005, discharged the applicant from active dutywith a 10% disability rating and severance pay effective 29 April 2005. 

r.He was honorably discharged from active duty on 29 April 2005. His DD Form214 shows he completed 18 years, 9 months, and 23 days of active service. He was assigned separation code JFL and the narrative reason for separation listed as “Disability, Severance Pay.” 

5.By regulation (AR 40-501), medical evaluation of certain enlisted militaryoccupational specialties and officer duty assignments in terms of medical conditions andphysical defects are causes for rejection or medical unfitness for these specializedduties. If the profile is permanent the profiling officer must assess if the Soldier meetsretention standards. Those Soldiers on active duty who do not meet retention standardsmust be referred to a medical evaluation board. Once a determination of physicalunfitness is made, disabilities are rated using the VA schedule of disability rating.

6.By regulation (AR 635-40), the mere presence of a medical impairment does not inand of itself justify a finding of unfitness. In each case, it is necessary to compare thenature and degree of physical disability present with the requirements of the duties theSoldier may reasonably be expected to perform because of his or her office, grade,rank, or rating. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receiveretirement and severance pay benefits:

a.The disability must have been incurred or aggravated while the Soldier wasentitled to basic pay or as the proximate cause of performing active duty or inactive duty training. 

b.The disability must not have resulted from the Soldier's intentional misconduct orwillful neglect and must not have been incurred during a period of unauthorized absence. 

7.The Army rates only conditions determined to be physically unfitting at the time ofdischarge, which disqualify the Soldier from further military service. The Army disabilityrating is to compensate the individual for the loss of a military career. The VA does nothave authority or responsibility for determining physical fitness for military service. TheVA may compensate the individual for loss of civilian employability.

8.Title 38, United States Code, Sections 1110 and 1131, permit the VA to awardcompensation for disabilities which were incurred in or aggravated by active militaryservice. However, an award of a VA rating does not establish an error or injustice on thepart of the Army.

9.Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for ratingdisabilities. The VA awards disability ratings to Veterans for service-connectedconditions, including those conditions detected after discharge. As a result, the VA,operating under different policies, may award a disability rating where the Army did notfind the member to be unfit to perform his/her duties. Unlike the Army, the VA canevaluate a Veteran throughout his or her lifetime, adjusting the percentage of disabilitybased upon that agency's examinations and findings.

10.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 is applying to the ABCMR requesting an increase in his militarydisability rating with a subsequent change in his disability discharge disposition from separated with disability severance pay to permanent retirement for physical disability.  He states: 

“I proudly served in the U.S. Army for over 19 years.  When I was being processed out of the Army for medical reasons, I asked if this was considered a medical retirement.  At that time, I was told that the VA handles that.  Recently, I learned after speaking with a Retired 1SG from the Army, that this is two different entities.  I called the VA to confirm, and they did confirm what the 1SG had told me.  While speaking with her, she was reviewing my VA records.  The lady I was speaking with could not understand why the medical board did not evaluate all my injuries and medically retire me, or just let me finish out the last ten months in order to retire.” 

b.The Record of Proceedings details the applicant’s military service and thecircumstances of the case.  The applicant’s DD 214 for the period of Service under consideration shows he entered the regular Army on 7 July 1986 and was discharged with $81,856.80 of disability severance pay on 29 April 2005 under provisions in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990).  The DD 214 shows his net service for this period was 23 days 9 months 18 years, and that he had 12 days 3 months 0 years of total prior active service, for a total of 5 days 1 month 19 years of active federal service (AFS) 

c.The applicant underwent a medical evaluation board physical examination inJanuary 2005.  His Report of Medical History shows the significant medical conditions he reported were chronic low back pain with radiculopathy since 2001, left shoulder arthroscopy with acromioplasty in 2002, and bilateral knee pain for 15 years. 

d.His medical evaluation board (MEB) narrative summary notes that his lumbarcondition with bilateral radiculopathy was secondary to a bad parachute landing fall (PLF) in 2001.  The examination found full range of motion of the shoulder with some painful motion, and some limited flexion of the lumbar spine with painful motion and a normal neurologic exam: 

(1)“PHYSICAL EXAMINATION: SFC {Applicant} is examined today.  He walkswith a normal gait.  His back motion has somewhat limited flexion but doesflex fairly well with full extension.  He has no muscle spasm in his lower back.He has reflexes that are 2+ and equal at the biceps brachia, triceps brachia,


brachioradialis, Achilles and patellar areas. Sensation in the upper and lower extremities is fully intact.  All muscle tone and strength is intact in the upper and lower extremities. His range of motion in both shoulders is full and intact. Range of motion of both knees is full and intact 

(2)DIAGNOSES:
1.Degenerative disc disease with some left side intervertebral foraminalencroachment that under AR 40-501, para 3-39h makes the service membereligible for separation from the service.

2.Irritable left shoulder postop SLAP lesion decompression. No specificregulation for separation, however under AR 40-501, para 3-41e(l) due to hismultiple visits could be a factor where he could be separated from the service.

3.Bilateral degenerative arthritis of the knees, non-disqualifying.

e.The Medical evaluation board subsequently found his “Chronic low back pain withbilateral radiculopathy HNP L4-5” and “Irritable left shoulder s/p SLAP lesion decompression” to fail medical retention standards.  On 23 February 2005, the applicant agreed with the board’s finding and recommendation and his case was sent to a physical evaluation board (PEB) for adjudication. 

f.The PEB returned his case to the MEB on 3 March 2005:

(1)“In accordance with paragraph 4-18b, AR 635-40, the case pertaining to theabove-named soldier is returned.  The Physical Evaluation Board (PEB) isunable to adjudicate the case based on the current information.



(2)The Soldier has over 18 years of active duty.  Per AR 635-40, paragraph 6-5b, Soldier's with that much time must decline in writing his desire not toremain on active duty.  Please provide this statement to the PEB so that thePEB may adjudicate his case.”



g.Paragraph 6-5b or AR 635-40 (15 August 1990):

“b. Soldiers with 18 years. When a soldier with 18 years but less than 20 years ofactive service is referred to a PEB for further processing and elects not to submit a request for COAD (continuance on active duty), such election will be in writing and attached to the MEBD proceeding.  If the soldier does not indicate in writing his or her desire not to request COAD, the PEBLO will include a signed certificate stating that the soldier has been counseled and elects not to submit an 
election in writing.” 

h.In his undated but signed response, the applicant declined the opportunity toremain on active duty until he reached 20 years AFS: 





“To Whom It May Concern at the PEB: I, SFC {Applicant} () would like to decline my option for applying for COAD. I express the desire to be separated from the military.” 

i.His physical evaluation board determined his lumbar and left shoulder conditionswere unfitting for continued military service.  They derived and applied 10% and 0% disability ratings respectively and recommended the applicant be separated with disability severance pay as his combined military disability rating was less than 30%. 

j.The 10% rating for the lumbar condition was correct.  While the left shouldercondition should have been rated at 10% for painful motion, this would have made no material difference as a combined military disability rating of 20% also results in separation with disability severance pay.   

k.On 21 March 2005, after being counseled on the PEB’s findings andrecommendation by his PEB liaison officer, the concurred with the board and waived his right to a formal hearing. 

l.Discharge orders published on 24 January 2003 show the applicant was to beseparated with disability severance pay effective 21 April 2003 with a 10% disability rating for a non-combat related injury. 

m.Review of his records in JLV shows he has been awarded multiple VA service-connected disability ratings.  However, the DES compensates an individual only for service incurred medical 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 authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. 

n.It is the opinion of the ARBA Medical Advisor that that neither an increase in hismilitary disability rating nor a referral of his case to the DES is warranted. 

BOARD DISCUSSION: 

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 warrant referral for further consideration of increasing the disability percentage previously provided by the Army. 

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. 



Microsoft Office Signature Line...
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 forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice. This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3-year statute of limitations if the ABCMR determines itwould be in the interest of justice to do so.

2.Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departmentswith authority to retire or discharge a member if they find the member unfit to performmilitary duties because of physical disability. The U.S. Army Physical Disability Agencyis responsible for administering the Army physical disability evaluation system andexecutes 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. 
 
3.  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.  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.  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. 
 
4.  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. 
 
5.  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. 
 
6.  Title 38 U.S. Code, section 1110 (General - Basic Entitlement), states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 
 
7.  Title 38 U.S. Code, section 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 
 
8.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to:  mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 
 
9.  Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 
 
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