IN THE CASE OF:  

		BOARD DATE:  6 October 2021

		DOCKET NUMBER:  AR20210005567


APPLICANT REQUESTS:  

*	retirement due to physical disability
*	personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty) for the 
period 15 August 2004 to 19 January 2006
*	Army National Guard (ARNG) discharge orders
*	National Guard Bureau (NGB) Form 22 (Report of Separation and Record of 
Service)
*	Department of Veterans Affairs (VA) Rating Decision
*	VA Form 10-5345 (Request and Authorization to Release Health Information)

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, U.S. 
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:

	a.  He was experiencing post-traumatic stress disorder (PTSD) and other 
symptoms but he was mentally unaware of what was happening around him. He was 
never sent to a medical board for evaluation. He was just told by his commander that he 
could not pass the Soldier Readiness Processing (SRP) he needed to be separated.

	b.  He believes his record is unjust because he was in the hospital with PTSD 
within one month of returning from Iraq. Because he had PTSD and other symptoms, 
his commander told him that he had no reason to keep him in the service.  

	c.  He was not asked or directed to attend a medical evaluation for his service 
connected injuries.  His commander, who he respects, became mad at him because he 
could not pass the SRP for clearance to deploy to Afghanistan. He wanted to be with his 
family back overseas but he was lost. He was not able to keep his supervisory job at a 
state school or his job at the sheriff department. Ever since he left the military, he has 
been feeling lost, trying to survive and not look at his life like rubbish, and he feels like 
the clock has stopped or paused.  

3.  The applicant enlisted in the ARNG on 30 January 1997.  His DD Form 214 shows 
he served in Iraq from 3 January to 15 December 2005. His DD Form 214 also shows 
he was released from active duty on 19 January 2006 by reason of completion of 
required active service.  

4.  On 10 February 2008, the applicant was issued a permanent physical profile based 
diagnoses of on panic disorder, PTSD, and sleep apnea. The profiling officer indicated 
the applicant required referral to a Medical Evaluation Board (MEB)/Physical Evaluation 
Board (PEB).  

5.  On 10 February 2008, the applicant acknowledged receipt of notification that he did 
not meet retention standards in accordance with Army Regulation 40-501 (Standards of 
Medical Fitness), chapter 3. He elected to be separated for medical disqualification per 
the medical retention standards of Army Regulation 4-501.

6.  A DA Form 4187 (Personnel Action), dated 11 March 2008, shows the applicant's 
immediate commander requested his discharge based on failure to meet medical 
retention standards in accordance with Army Regulation 40-501.

7.  Orders issued on 5 May 2008, directed the applicant's discharge from the ARNG by 
reason of medically unfit for retention standards.  

8.  The applicant's NGB Form 22 confirms he was discharged from the ARNG on 
30 April 2008 by reason of medically unfit for retention.  

9.  The applicant provided a VA Rating Decision, dated 2 July 2013, showing he was 
granted service-connected disability compensation, with a disability rating of 100%, for a 
number of medical conditions which include PTSD.

10.  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.

11.  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. 

12.  Title 38, Code of Federal Regulations, Part IV is the VA 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.

13.  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 a referral to the Disability 
Evaluation System (DES).  He states:

“I was experiencing PTSD and other symptoms but was mentally unaware what 
was happening to and around me.  I never went to a medical or any board for 
evaluation.”

    b.  The Record of Proceedings outlines the applicant’s service and the circumstances 
of the case.  A DD 214 shows the former combat engineer was mobilized from 15 
August 2004 thru 12 May 2004 with service in Iraq from 3 January 2005 thru 15 
December 2005. 

    c.  The applicant’s Report of Separation and Record of Service (NGB Form 22) 
shows he enlisted in the Army National Guard on 30 January 1997 and was honorably 
discharged from the Texas Army National Guard (TXARNG) on 30 April 2008.   He was 
separated under authority provided of paragraph 6-35l(8) of NGR 600-200, Enlisted 
Personnel Management: Medically unfit for retention per AR 40-501.  

    d.  The applicant was placed on a duty limiting permanent profile for sleep apnea, 
panic disorder, and PTSD on 30 March 2008.  The serial for psychiatric conditions is a 1 
and is an obvious error:  The provider stated the applicant “Needs PEB board” as he 
failed paragraphs 3-32b and 3-33b of AR 40-501, Standards of Medical Fitness (29 
August 2003).

    e.  Paragraph 3-32 is for mood disorders and 3-33 is for anxiety disorders, of which 
PTSD is one.  Subparagraph b is the same for both paragraphs, and states these 
mental health conditions fail medical retention standards and are a cause for referral to 
an MEB when “Persistence or recurrence of symptoms necessitating limitations of duty 
or duty in protected environment.”

    f.  The TXARNG notified the applicant that he longer met the Army medical standards 
for retention based on his medical conditions. They gave the applicant the option to 
either be separated for medical disqualification or referral to a non-duty related physical 
evaluation board for a fitness determination only.  He was not given the option to be 
appropriately referred to the DES for his service incurred PTSD.  Given these limited 
options, the applicant elected to be discharged.

    g.  A VA decision dated 2 July 2013 shows he was service connected for PTSD with 
an evaluation of 50% effective 1 February 2006, and that the evaluation was increased 
to 100% effective 20 July 2010.  

    h.  It is unknown why the applicant was not processed into the DES as required by 
multiple Army regulations.  Paragraph 7-1 of AR 40-400, Patient Administration, states 
in part: “If the Soldier does not meet retention standards, an MEB is mandatory and will 
be initiated by the physical evaluation board liaison officer (PEBLO).”  Note there is no 
mention of component or duty status.  Paragraph 7-5b(5) is more direct for this case, 
stating that one of the situations which requires MEB consideration is “an RC member 
not on AD who requires evaluation because of a condition that may render him or her 
unfit for further duty.”

    i.  Paragraph 3-2 of AR 635-40, Physical Evaluation for Retention, Retirement, or 
Separation (20 March 2012), identifies the error made by his command:

“When a commanding officer believes that a member of his command is unfit to 
perform the duties of his office, grade, rank, or rating because of physical or 
mental disability, he will refer the member for examination to the medical 
treatment facility which provides primary medical care to his command.”
    j.  The applicant was errantly administratively discharged when he should have been 
referred to the DES for at least one duty related condition (PTSD) which failed the 
medical retention standards of chapter 3, AR 40-501 and led to his discharge.  

    k.  It is the opinion of the Agency Medical Advisor that a long overdue referral of his 
case to the DES is clearly warranted. In the event he is permanently retired for physical 
disability: 

   (1) He should receive all retirement pay from 30 April 2008, the date of discharge, 
forward, to include interest and COLAs, Furthermore, he should be eligible to enroll in 
the Survivor Benefit Plan (SBP).  

    (2) Because this retirement makes him eligible to receive Combat Related Special 
Compensation for all of his combat related disabilities, he should be authorized to apply 
for CRSC and receive retroactive payments for this disability and other combat related 
disabilities he may have incurred IAW Chapter 63, Volume 7B of Department of 
Defense 7000.14R, Financial Management Regulation - Combat-Related Special 
Compensation (CSRC).  This should also include interest and COLAs.  

    (3) Finally, the applicant should be refunded, to the extent it can be verified, all out 
of pocket medical care and health insurance monies paid by him and/or his spouse for 
the family and their dependents between the date of his discharge and the date of the 
enrollment of his dependent(s) in TRICARE (if applicable).  Had the applicant been 
appropriately retired for physical disability, both he and his family would have been 
TRICARE eligible and so unlikely to have incurred few, if any, of these expenses.

BOARD DISCUSSION:

1.	The applicant's request for a personal appearance 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 before the Board is not necessary to serve the interest of 
equity and justice in this case. 

2.	After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board determined that relief was warranted. The Board 
carefully considered applicant’s contentions, military record, and regulatory guidance. 
The Board concurred with the Medical Advisor that the applicant was administratively 
discharged; whereas, he should have been referred to the Disability Evaluation System. 
Based on the preponderance of the evidence available for review, the Board determined 
the evidence presented sufficient to warrant a recommendation for relief.

 BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by referral of his case to the 
Disability Evaluation System    
 
2. The Board further determined that in the event the applicant is permanently retired for 
physical disability he should 

*	receive all retirement pay based on based on his date of discharge, 30 April 2008 
and forward to include interest and COLAs
*	be eligible to enroll in the Survivor Benefit Plan (SBP)
*	be eligible to receive Combat Related Special Compensation for all combat-
related disabilities
*	be authorized to receive retroactive payments for this disability and other combat 
related disabilities he may have incurred IAW Chapter 63, Volume 7B of 
Department of Defense 7000.14R, Financial Management Regulation

3. The Board finally determined the applicant should be refunded, to the extent verifiable,  
all out of pocket medical care and health insurance monies paid by him and/or his spouse 
for family and their dependents between the date of his discharge and the date of the 
enrollment of his dependent(s) in TRICARE (if applicable).  
		  
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.

REFERENCES:

1.  Title 10, U. S. Code, section 1552(b), provides that applications for correction of 
military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would 
be in the interest of justice to do so.

2.  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 
(Disability 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, 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.

3.  Army Regulation 635-40 establishes the Army Disability Evaluation System and sets 
forth policies, responsibilities, and procedures that apply in determining whether a 
Soldier is unfit because of physical disability to reasonably perform the duties of his 
office, grade, rank, or rating.  The regulation in effect at the time states in:

	a.  Paragraph 3-2, 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, 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 provides information on medical fitness standards for 
induction, enlistment, appointment, retention, and related policies and procedures.  
Soldiers with conditions listed in chapter 3 who do not meet the required medical 
standards will be evaluated by an MEB and will be referred to a PEB as defined in Army 
Regulation 635-40.  The regualiton in effect at the time states in:

	a.  Paragraph 3-3, U.S. Army Reserve or ARNG Soldiers not on active duty, whose 
medical condition was not incurred or aggravated during an active duty period, will be 
processed in accordance with chapter 9 and chapter 10 of this regulation.

	b.  Chapter 10 (ARNG) sets basic policies, standards, and procedures for medical 
examinations and physical standards for the ARNG.  The Clinical Section, NGB, Office 
of the Chief Surgeon, is the office responsible for management of all issues pertaining 
to this chapter.

	c.  Paragraph 10-5 states that prior to initiating active duty orders for more than 
30 days, the National Guard Soldier must have a valid periodic health assessment 
(PHA) (within one year) and must have no outstanding medical issues that require 
follow-up, to include a temporary profile.  If the PHA is expected to expire during the 
deployment or time of activation, a new PHA must be completed within 60 days prior to 
the start of the period of active duty.

	d.  Paragraph 10-25 (Soldiers pending separation for failing to meet medical 
retention standards) states that members with non-duty related impairments are eligible 
to be referred to the PEB solely for a fitness determination, but not a determination of 
eligibility for disability benefits.

5.  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.  
Paragraph 2-11 states applicants do not have a right to a formal hearing before the 
ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice 
requires.

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.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210005567


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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