ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		IN THE CASE OF:  

		BOARD DATE:  14 January 2022

		DOCKET NUMBER:  AR20210005315


APPLICANT REQUESTS:  

*	to recalculate his Integrated Disability Evaluation System (IDES) rating
*	to upgrade his disability disposition from separated with severance pay to 
disability retirement
*	award of the Combat Action Badge
*	a video/telephonic appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Forms 149 (Application for Correction of Military Record), dated
18 and 19 January 2021
*	Self-authored Statement, undated

*	Boston.com news article (Rocket hits peacekeepers base in Kabul), dated 
11 May 2004
*	Allied Forces North Europe Release 2004-12, dated 15 June 2004
*	Orders Number 08-058-00009 issued by Headquarters, 335th Signal Command, 
dated 27 February 2008
*	DD Form 689 (Individual Sick Slip), dated 18 April 2008
*	DA Form 2173 (Statement of Medical Examination and Duty Status), dated 
26 April 2008
*	Medical Eligibility Verification, Reserve Component, dated 26 April 2008
*	Mee Memorial Authorization for Use or Disclosure of Health Information, dated 
7 May 2008
*	Orders Number 08-071-00017 issued by the 335th Signal Command, dated 
11 March 2008
*	Orders Number 152-554 issued by the U.S. Army Air Defense Artillery Center 
and Fort Bliss, dated 30 May 2008
*	Orders Number 08-206-04 issued by the 335th Signal Command, dated
24 July 2008
*	Orders Number 119-0021 issued by Headquarters, U.S. Army Air Defense 
Artillery Center and Fort Bliss, dated 29 April 2009
*	Department of Defense Instruction (DODI) 1332.18 (Disability Evaluation System 
(DES), dated 5 August 2014
*	DA Form 2173, dated 22 January 2016
*	335th Signal Command Theater, Memorandum for Record, Subject:  Line of Duty 
(LOD) Determination, dated 13 April 2016
*	Department of Veterans Affairs (VA) Decision letter, dated 10 July 2017
*	DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings), dated 
3 August 2017
*	U.S. Army Physical Disability Agency (USAPDA) Memorandum, Subject  
Transfer to the Retired Reserve (15-Year Letter), dated 30 October 2017
*	Orders Number 17-320-00001 issued by Headquarters, 63rd Readiness Division, 
dated 16 November 2017
*	Legislative Hearing on Pre-Discharge Claims Programs:  Are VA and DOD
Effectively Serving Separating Military Personnel, dated 13 December 2017
*	VA, Office of Inspector General (OIG), Accuracy of Claims Decisions Involving 
Conditions of the Spine, dated 5 September 2019
(see attached 39-page protected document)
*	VA Rating Decision, dated 3 August 2020
*	VA Decision Letter, dated 4 August 2020
*	VA Rating Decision, dated 26 August 2020
*	U.S. Army Human Resources Command (HRC), Awards and Decorations 
Branch letter, dated 20 October 2020
*	Combat Action Badge narrative, undated

FACTS:

1. The applicant states:

	a.  Inaccurate results from the IDES found him medically unfit for duty. The rating on 
his 2017 DA Form 199 used an evaluation from December 2014. Section V(1) 
(Administrative Determinations) shows is not injured in the LOD; V(3) did not; and 
V(4) was not.

	b.  During his Compensation and Pension examination in May 2017, his condition 
had improved and the Physical Evaluation Board (PEB) found him unfit and 
recommended a rating of 20 percent and separation with severance instead of 
retirement. Orders were published showing separation at 20 percent.

	c.  His current rating for the same disability is 40 percent with two secondary 
conditions rated at 10 percent each; which qualifies for medical retirement. His disability 
occurred in the LOD and his DA Form 199, Section V(1) should reflect "is"; V(3) "did"; 
and V(4) "was."

	d.  VA OIG Report Number 18-05663-189 found that all incorrectly decided veteran 
claims resulted from the Veteran Benefits Administration's (VBA) inadequate process for 
ensuring accurate and complete evaluations within fiscal year 2018.

	e.  As his request pertains to the Combat Action badge, the only awards given while 
deployed in support of Operation Enduring Freedom in Afghanistan in 2004 was the 
Global War on Terrorism Expeditionary Medal, The Non-Article 5 North Atlantic Treaty 
Organization (NATO) Medal for International Security Assistance Force (ISAF) 
operations, and the Joint Service Commendation Medal. The Combat Action Badge was 
approved after May 2005 to provide special recognition to Soldiers who personally 
engaged or was engaged by the enemy. 

	f.  According to Army Doctrine Reference Publication 3-90 (Offense and Defense), 
there are eight forms of contact including visual; direct; indirect; non-hostile; obstacles; 
aircraft; Chemical, Biological, Radiological, Nuclear; and electronic warfare. According 
to Army Regulation (AR) 6008-22 (Military Awards), the Combat Action Badge may be 
awarded to any Soldier not eligible for the Combat Infantryman Badge or Combat 
Medical Badge after 18 September 2001 for (1) performing duties in an area where 
hostile fire pay or imminent danger pay is authorized; (2) being personally present and 
actively engaged or being engaged by the enemy; and (3) performing satisfactorily in 
accordance with prescribed rules of engagement. Award of the Combat Action Badge 
for indirect contact therefore falls within both doctrine and regulation.

2. The applicant's service record shows:

	a.  On 29 September 1999, the applicant enlisted in Regular Army.

	b.  From 6 April to 7 July 2004, the applicant deployed to Afghanistan in support of 
Operation Enduring Freedom.

	c.  DD Form 214 (Certificate of Release or Discharge from Active Duty) ending on 
1 January 2007, shows the applicant was honorably released from active duty.

		(1)  Block 12c (Net Active Service This Period) – 7 years, 3 months, and 3 days.

		(2)  Block 12f (Foreign Service) – 6 years, 4 months, and 10 days.

		(3)  Block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons 
Awarded or Authorized) – 

*	Joint Service Commendation Medal (2nd Award)
*	Army Commendation Medal
*	Army Achievement Medal
*	Army Good Conduct Medal (2nd Award)
*	National Defense Service Medal
*	Global War on Terrorism Expeditionary Medal
*	Global War on Terrorism Service Medal
*	Korea Defense Service Medal
*	Noncommissioned Officer Professional Development Ribbon (2nd Award) 
*	Army Service Ribbon
*	Overseas Service Ribbon (3rd Award) 
*	NATO Medal
*	Marksman Marksmanship Qualification Badge
*	Driver and Mechanic Badge with Badge – W Bar

	d.  On 29 March 2007, the applicant enlisted in the USAR for 6 years.

	e.  From 2 June 2008 to 26 April 2009, the applicant entered active duty in support 
of Operation Iraqi Freedom.

	f.  On 19 May 2009, the applicant was honorably released from active duty and 
returned to his USAR unit. 

	g.  The applicant's records are void of a 2014 DA Form 199.

	h.  On 3 August 2017:

		(1)  A PEB convened and found the applicant physically unfit with a rating of 20 
percent for lumbosacral strain with mild L4-L5-S1 facet arthrosis and central 
lumbosacral canal stenosis. The onset occurred in 2010 while the applicant was in the 
United States. (LOD "Yes"). The PEB recommended the applicant be separated with 
severance pay. He was found fit for the following conditions:

*	Post-Traumatic Stress Disorder (PTSD)
*	Pelvic floor pain syndrome
*	Post phlebitic syndrome
*	Obstructive sleep apnea
*	Allergic rhinitis/nasal turbinate hypertrophy
*	Tinnitus
*	Knee condition
*	Hip condition and hearing loss

	(2)  Section V (Administrative Determinations) shows:

*	V(1) disability is not based on disease or injury incurred in the LOD
*	V(3) the disability did not result from a combat related injury under the 
provisions of Title 26, United States Code (USC), section 104 or Title 10, 
USC, section 10216
*	V(4) the disability severance pay was not awarded for disability incurred in 
a combat zone or incurred while performing combat related operations as 
designated by the Secretary of Defense (Title 10, USC, section 1212)

		(3)  The applicant concurred with the findings of the PEB and waived a formal 
hearing and reconsideration of his VA ratings. He also elected transfer to the Retired 
Reserve in lieu of being separated for disability with entitlement to disability severance 
pay

	i.  On 17 October 2017, HRC, issued a Notification of Eligibility for Retired Pay at 
Age 60 (15-Year Letter), which informed the applicant he was medically disqualified 
from further service, but had obtained at least 15 years but less than 20 years of 
qualifying service to apply for retirement at age 60.

	j.  On 16 November 2017, Orders Number 17-320-00001, issued by Headquarters, 
63rd Readiness Division, reassigned the applicant to the Retired Reserve, effective 
15 December 2017.

	k.  The applicant's records are void of documents pertaining to the submission of a 
Combat Action Badge packet or orders awarding him the Combat Action Badge.

3. The applicant provides:

	a.  Self-authored Statement, undated, in which the applicant requests 
reconsideration of his request for the Combat Action Badge while on NATO Travel 
Orders during Stage 1 of ISAF under General in 2004. They were under coalition 
command while in Afghanistan, not part of U.S. Forces-Afghanistan. They were 
attacked several times while deployed in Kabul, Afghanistan. In May, he was preparing 
equipment on Camp Warehouse for a mission to ISAF Headquarters with coalition 
Soldiers when the enemy attacked with an SS-107 rocket; which exploded the sandbag 
barrier next to the sleeping tent. He was about 20 meters from the explosion. A 
Bulgarian coalition soldier was injured in the next sleeping tent, but he was unhurt. He 
adhered to local NATO standard operating procedures and was able to perform his 
duties satisfactorily in accordance with established Rules of Engagement for the ISAF 
mission. Details of the event were classified with NATO ISAF contingencies at the time 
of the event. Later that month, a Norwegian patrol was attacked, mortally wounding one 
and injuring another and on 15 June, they were attacked at night in Headquarters ISAF 
in downtown Kabul. He and coalition forces performed their duties satisfactorily in 
accordance with rules of engagement for ISAF personnel. These events were classified 
at the time.

	b.  Boston.com news article showing a rocket was fired into the ISAF main base.

	c.  Allied Forces North Europe Release 2004-12 showing on 15 June 2004, at 
approximately 2110 an explosion occurred outside of the Headquarters ISAF compound 
and was believed to be a rocket fired from a north westerly direction. 

	d.  Orders Number 08-58-00009 issued by 335th Signal Command, dated 
27 February 2008, showing the applicant was released from his current assignment and 
reassigned from a Troop Program Unit (TPU) to another TPU within the Command 
effective 27 February 2008.

	e.  DD Form 689, dated 18 April 2008, showing the applicant was treated for his left 
ankle, right knee and lower back pain and was transported to Mee Memorial Hospital 
emergency room for further evaluation.

	f.  DA Form 2173, dated 26 April 2008 (and allied documents), showing the applicant 
was on active duty for training from 10 April to 5 May 2008 when he was admitted to 
Mee Memorial Hospital emergency room at 1640 hours for a swollen left ankle and pain. 
He was sent home with medication

		(1)  Section 11 (Medical Opinion) states (a) the applicant was not under the 
influence, (b) the applicant was mentally sound, (c) the injury is not likely to result in a 
claim against the government for future medical care, and (d)  the injury was not 
incurred in the LOD.

		(2)  Section 31 (Formal LOD Investigation Required) "No."

		(3)  Section 32 (Injury is considered to have been incurred in LOD) – "Yes." 

	g.  Medical eligibility verification showing the applicant was a member of the USAR 
injured on 18 April 2008, with a diagnosis of venous insufficiency and lower back pain. 
The type of LOD was informal.

	h.  Mee Memorial Authorization for Use or Disclosure of Health Information 
authorizing disclosure of health information.

	i.  Orders Number 08-071-00017 issued by the 335th Signal Command, dated 
11 March 2008, shows the applicant was ordered to active duty in support of Operation 
Iraqi Freedom with a report date of 10 May 2008 for a period of 400 days.

	j.  Orders Number 152-554 issued by the U.S. Army Air Defense Artillery Center and 
Fort Bliss, dated 30 May 2008, showing the applicant was assigned to temporary duty at 
Camp Arifjan, Kuwait in support of Operation Iraqi Freedom with a report date of 
2 June 2008 for a period of 374 days.

	k.  Orders Number 08-206-04 issued by the 335th Signal Command, dated 
24 July 2008, showing the applicant was deployed in a Temporary Change of Station 
status to Camp Arifjan, Kuwait with duty in Iraq and authorized travel in the U.S. Army 
Central Command (CENTCOM) area of responsibility in Support of Operation Iraqi 
Freedom on or about 6 June 2008.

	l.  Orders Number 119-0021 issued by Headquarters, U.S. Army Air Defense 
Artillery Center and Fort Bliss, dated 29 April 2009, released the applicant from active 
duty for demobilization of forces from Operation Iraqi Freedom, not by reason of 
physical disability, effective 19 May 2009.

	m.  DODI 1332.18 providing instructions pertaining to the DES.

	n.  DA Form 2173, dated 22 January 2016, showing the applicant was treated at 
Evans Medical Clinic for lumbago/sprain lumbar region.

		(1)  Section 11 (Medical Opinion) states (a) the applicant was not under the 
influence, (b) the applicant was mentally sound, (c) the injury is not likely to result in a 
claim against the government for future medical care, and (d) the injury was incurred in 
the LOD.

		(2)  Section 30 (Details of Accident) – lower back strain/pain during obstacles 
while attending Jungle Warfare Training in Okinawa, Japan. His initial injury occurred 
while on active duty from first enlistment. The injury has been aggravated during training 
as a Reservist and prevents the applicant from participating in training.

		(3)  Section 32 (Injury is considered to have been incurred in LOD) – "Yes." 

	o.  335th Signal Command Theater, Memorandum for Record, Subject:  LOD 
Determination, dated 13 April 2016, approved the applicant's DA Form 2173 for a lower 
back injury that occurred on 18 April 2008 while on active duty.

	p.  VA Decision Letter, dated 10 July 2017, showing the applicant received:

		(1)  20 percent for lumbosacral strain with mild L4-L5, L5-S1 facet arthrosis and 
central lumbosacral canal spinal stenosis. The effective date of his evaluation was 
1 December 2014, the date of his previous grant for benefits. Improvement was 
observed during the examination and with recent treatment records, the assigned 
evaluation is not considered permanent and subject to future review examination.

		(2)  30 percent for PTSD based on anxiety, occupational and social impairment 
with occasional decrease in work efficiency and intermittent periods of inability to 
perform occupational tasks, and chronic sleep impairment. The evaluation is continued 
as 30 percent disabling.

	q.  USAPDA Memorandum, Subject: Transfer to the Retired Reserve (15-Year 
Letter), dated 30 October 2017, showing the PEB determined the applicant was 
physically unfit and transferred him to the Retired Reserve.

	r.  Legislative Hearing on Pre-Discharge Claims Programs:  Are VA and DOD
Effectively Serving Separating Military Personnel, dated 13 December 2017, providing 
testimony as it pertains to the VA and DOD serving separating military personnel.

	s.  VA, OIG, Accuracy of Claims Decisions Involving Conditions of the Spine, dated 
5 September 2019, (see attached 39-page protected document)

	t.  VA Rating Decision, dated 3 August 2020, showing the applicant was examined 
on 27 July 2020. The evaluation of intervertebral disc syndrome was increased from 
20 percent to 40 percent. Service connection for left lower extremity radiculopathy was 
granted for 10 percent. Service connection for intervertebral disc syndrome, 
lumbosacral strain was granted for 10 percent.

	u.  VA Decision Letter, dated 4 August 2020, showing the applicant's monthly 
entitlement benefits.

	v.  VA Rating Decision, dated 26 August 2020, showing the applicant filed a new 
claim for benefits on 30 July 2020 and supplement claim for benefits on 
20 August 2020.

		(1)  Service connection for obstructive sleep apnea was granted for 50 percent.

		(2)  The evaluation of PTSD with severe alcohol use disorder was increased from 
30 percent to 50 percent effective 10 October 2019.

		(3)  The evaluation of intervertebral disc syndrome, lumbosacral with mild L4-L5, 
L5-S1 facet arthrosis and central lumbosacral canal spinal stenosis was continued as 
40 percent disabling.

		(4)  A decision on entitlement to compensation for allergic rhinitis was deferred. 

	w.  On 20 October 2020, HRC, Awards and Decorations Branch, denied the 
applicant's request for award of the Combat Action Badge. The request did not 
demonstrate that the applicant fulfilled the three basic requirements for award of the 
Combat Action Badge. The request did not demonstrate the applicant was personally 
present and under hostile fire while performing satisfactorily in accordance with the 
prescribed rules of engagement, performing in an offensive or defensive act while 
participating in combat operations, engaging, or being engaged by the enemy, and 
performing assigned duties associated with the unit's combat mission at the time of the 
event

	x.  Combat Action Badge narrative, undated, which provides the details for 
qualification of the Combat Action Badge. It states, on the morning of 
11 May 2004 around 0930, the applicant was assigned to Kabul Multi National Brigade 
in Afghanistan completing an ISAF deployment where he oversaw Line of Sight 
communication equipment. He was preparing equipment on Camp Warehouse for a
mission to ISAF Headquarters with coalition Soldiers when the enemy attacked with an 
SS-107 rocket; which exploded the sandbag barrier next to the sleeping tent. The 
applicant was about 20 meters from the explosion where a coalition soldier was injured. 
The applicant performed his duties satisfactorily in accordance with established Rules of 
Engagement. While taking cover after the rocket explosion, the applicant put his 
Soldiers needs before his own and ensured 100 percent accountability of U.S. 
personnel, international Soldiers, and sensitive items. While waiting for the ISAF Quick 
Reaction Force to respond to the enemy, the applicant was ready to engage the enemy 
when he ran across Camp Warehouse to retrieve water for all coalition members taking 
cover inside the bunker as stated in the Rules of Engagement. The applicant's Military 
Occupational Specialty (MOS) suits the criteria for the Combat Action Badge and due to 
his selfless service and leadership, he is deserving of this award.

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 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 military 
disability ratings and a medical retirement.  He states:
“Inaccurate results from Integrated Disability Evaluation System (IDES), found 
medically un fit for duty.  My current rating for same disability is 40% with two 
secondary conditions with 10% each. This qualifies for medical retirement.  This 
is more than 20% from inaccurate exam in 2017.  DA 199 Disability was occurred 
in Line-of-Duty, changes to reflect Section V(l) to "is”, Section V(3) to "did", 
Section V(4) to "was".”
    b.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  His discharge orders show the former drilling member of the 
United States Army Reserve was transferred to the Retired Reserve on 15 December 
2017 after having been granted an early retirement prior to the completion of 20 
qualifying years of service.  The condition was determined to not have been either 
incurred in a combat zone or incurred during the performance of duty in combat-related 
operations as designated by Secretary of Defense.
    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.  The applicant was referred to the DES for “Lower back injury” on 20 March 2017.  
The applicant claimed six additional conditions on a separate Application for Disability 
Compensation and Related Compensation Benefits (VA Form 21-526EZ).  The medical 
evaluation board (MEB) determined his “Lumbosacral Strain/Mild L4-L5, L5-S1 Facet 
Arthrosis/Mild Central Lumbosacral Canal Spinal Stenosis” did not meet the medical 
retention standards of AR 40-501, Standards of Medical Fitness; and that the remaining 
nine medical conditions met medical retention standards.  The applicant agreed with the 
MEB’s findings and recommendation on 17 May 2017and his case was forwarded to a 
physical evaluation board (PEB) adjudication.

    g.  When the informal PEB convened on 3 August 2017, they found him unfit for his 
lumbar condition, and fit for the other nine medical conditions.  The Board made the 
administrative determination the condition was not combat related.  They applied the 
Veterans Benefits Administration’s (VBA) derived ratings of 20% and recommended the 
applicant be separated with disability severance pay.  On 5 August 2017, after being 
counseled on the informal PEB’s findings by her 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.    

    h.  The Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire 
(DBQ) (aka VA C&P) along with the Veterans Benefits Administration’s ratings were 
reviewed.  This condition was rated using the VA Schedule for Rating Disabilities’ 
(VASRD) diagnostic code 5237 – lumbosacral strain.  The ratings scale for lumbar 
conditions, excluding intervertebral disc disease, is the same for a variety of lumbar 
condition as it is based on range of motion.  The 20% rating the applicant received and 
those bracketing it are based on these findings: 

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%

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%

Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable 
ankylosis of the entire thoracolumbar spine ....... 40%

    i.  Review of his DBQ shows him to have had a forward flexion of 80 degrees and a 
combined ROM of 210 degrees.  These findings would yield a 10% rating.  However, 
the VBA opined “Although recent evidence shows some improvement in the condition, 
sustained improvement has not been definitively established. {38 CFR 3.344}.”  Thus, 
his 20% rating from 2014 was maintained.

    j.  The applicant requested changes be made in Section V of his DD 199, Informal 
Physical Evaluation Board (PRB) Proceedings.  While this section addresses combat 
related, the applicant appears to believe it involves line of duty determinations, which it 
does not.  Had the applicant’s condition not have been incurred in the line of duty, he 
would not have been eligible for severance pay.  Review of the case file found 
insufficient evidence the condition was combat related as defined in Section b(3) of 26 
U.S. Code §?104.

    k.  Because the applicant had more than 15 but less than 20 qualifying years for 
retirement, he was eligible for a 15 year notice of eligibility as outlined in paragraph 4-
27d(2) of AR 635-40, Disability Evaluation for Retention, Retirement, or Separation (19 
January 2017).

  (2) Election for 15-year notice of eligibility.  RC Soldiers who are members of the 
Selected Reserve and have a disability disposition of separate with or without 
disability severance pay will be afforded the opportunity to make an election to 
transfer to the Retired Reserve under the provisions of 10 USC 12731b as set forth 
below.

  (a) A finding of unfit by the PEB or USAPDA is required for eligibility for the 15-
year notice of eligibility when—

  1. The RC Soldier’s disability was incurred in the LOD or is compensable under 
the provisions of 10 USC 1207a.

    l.  The applicant elected transfer to the Retired Reserve with a non-regular retirement. 

    m.  Review of his ePEB case file and Records in AHLTA revealed no material 
discrepancies or errors.

    n.  The applicant states and review of his records in JLV confirm 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 
Department of Veterans Affairs and are executed under a different set of laws.

    o.  Given no evidence of error or injustice, it is the opinion of the Agency Medical 
Advisor that neither an increase in his military disability rating, a reversal of his transfer 
to the Retired Reserve, nor a referral of his case back to the DES is warranted.

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 reconsideration of his medical separation is not 
warranted.

3.  The Board considered the evidence provided in support of awarding the CAB.  The 
Board determined there is insufficient evidence to amend HRC’s decision to deny his 
request.  

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. AR 600-8-22 (Military Awards) states the requirements for award of the Combat 
Action Badge are branch and MOS immaterial. Assignment to a combat arms unit or a 
unit organized to conduct close or offensive combat operations or performing offensive 
combat operations is not required to qualify for the Combat Action Badge. However, it is 
not intended to award the Combat Action Badge to all Soldiers who serve in a combat 
zone or imminent danger area. The Soldier must be performing assigned duties in an 
area where hostile fire pay or imminent danger pay is authorized. The Soldier must be 
personally present and actively engaging or being engaged by the enemy and 
performing satisfactorily in accordance with the prescribed rules of engagement. The 
Soldier must not be assigned or attached to a unit that would qualify the Soldier for the 
Combat Infantryman Badge or the Combat Medical Badge. Award of the Combat Action 
Badge is authorized from 18 September 2001 to a date to be determined. Only one 
Combat Action Badge may be awarded during a qualifying period.

2. AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) provides 
policy and responsibilities for the disability evaluation and disposition of Soldiers who 
may be unfit to perform their military duties due to physical disability.

	a.  Section 4–27 (Final disposition by USAPDA) states unless reserved for higher 
authority, USAPDA approves disability cases for the Secretary of the Army and issues 
the disposition instructions to the Transition Center for Soldiers separated or retired for 
physical disability from an active duty status. The USAPDA publishes the disability 
orders on Soldiers of the Army Reserve and National Guard who are not on active duty. 
The dispositions include:

		(1)  Permanent disability retirement – When the Soldier is determined unfit for 
continued service and has a compensable disability, and – 

*	The disabilities are permanent and stable
*	The Soldier has at least 20 years of service
*	The Soldier has a combined disability rating of at least 30 percent

		(2)  Placement on the Temporary Disability Retired List (TDRL) – When the years 
of service or percentage requirements for permanent disability retirement are met but 
the disabilities are not determined to be permanent and stable.

		(3)  Separation with disability severance pay – When the Soldier is unfit due to a 
compensable physical disability, and – 

*	The Soldier has less than 20 years of service 
*	The Soldier's combined disability rating is less than 30 percent, to include 
a rating of 0 percent
		(4)  Revert to retired status with disability benefits – When a retiree for regular or 
non-regular service is determined unfit for a disability rated at least 30 percent.

	b.  Section 5–23 (LOD requirements for disability cases) states when a 
DA Form 2173 and the approval memo is required, it will be accomplished before the 
forwarding of the Soldier's case to the PEB. The PEB and USAPDA are authorized to 
return a case for completion of a LOD determination in situations below:

*	The LOD in the case does not relate to the incurrence or aggravation of the 
medical impairment under adjudication
*	An informal LOD was presented when AR 600–8–4 requires a formal LOD
*	The case includes only an informal LOD and the determination was "No"

3. DODI Number 1332.18 (Disability Evaluation System), Appendix 6 To Enclosure 3 
states under:

	a.  Separation with Disability Severance Pay – When the member is unfit for a 
compensable disability determined in accordance with the standards of this instruction, 
and the following requirements are met. Stability is not a factor for this disposition.

		(1)  When the total disability rating is at least 30 percent in accordance with the 
Veteran Affairs Schedule for Rating Disabilities and the Soldier has less than 20 years 
of service.

		(2)  When the Soldier has at least 20 years of service computed and the disability 
is rated at less than 30 percent.

   b.  Transfer to Retired Reserve – Reserve Component members who have 
completed at least 20 qualifying years of Reserve service and who would otherwise be 
qualified for retirement may forfeit disability severance pay and request transfer to an 
inactive status list for the purpose of receiving non-disability retired pay at age 60. When 
disability severance pay is accepted, the Soldier forfeits all rights to receive retired pay 
at age 60. There are no provisions to repay disability severance pay to then receive 
retired pay.

4. AR 135-180 (Qualifying Service for Retired Pay Non-Regular Service), states in 
paragraph 2-1, to be eligible for retired pay, an individual need not have a military status 
at the time of application, but must have attained age 60 and 15 years of qualifying 
service, and less than 20, computed under Title 10, United Stats Code, section 12732, if 
the individual is to be separated because the Soldier has been determined unfit for 
continued Selected Reserve service

5. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the 
policies and procedures for correction of military records by the Secretary of the Army, 
acting through the ABCMR. The ABCMR 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.

6. Title 38, United States Code, sections 1110 and 1131, permit the VA to award 
compensation for a medical condition which was incurred in or aggravated by active 
military service. The VA, however, is not required by law to determine medical unfitness 
for further military service. The VA, in accordance with its own policies and regulations, 
awards compensation solely on the basis that a medical condition exists and that said 
medical condition reduces or impairs the social or industrial adaptability of the individual 
concerned. Consequently, due to the two concepts involved, an individual's medical 
condition, although not considered physically unfit for military service at the time of 
processing for separation, discharge, or retirement, may be sufficient to qualify the 
individual for VA benefits based on an evaluation by that agency.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20210005315
	
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