IN THE CASE OF: BOARD DATE: 9 May 2022 DOCKET NUMBER: AR20210017200 APPLICANT REQUESTS: physical disability retirement in lieu of physical disability separation with severance pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 294 (Application for a Review by the Physical Disability Board of Review (PDBR) of the Rating Awarded Accompanying a Medical Separation from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) covering the period ending 23 November 2000 * DD Form 214, covering the period ending 3 July 2005 * Commander’s Statement memorandum, dated 18 September 2007 * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 19 November 2007 * self-authored appeal memorandum, dated 7 December 2007 * partial DA Form 199, dated 11 December 2007 * DD Form 214, covering the period ending 1 April 2008 * Department of Veterans Affairs (VA) letter, dated 4 June 2021 FACTS: 1. The applicant did not file within the 3-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 VA rating letters from the time of his Medical Evaluation Board (MEB) through the present show his medical separation should be a medical retirement. 3. The applicant enlisted in the Regular Army on 6 November 1991 and was awarded the Military Occupational Specialty (MOS) 62B (Construction Equipment Repairer). 4. The applicant enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 21 November 2000. 5. The applicant’s initial DD Form 214 shows he was honorably discharged from the Regular Army on 23 November 2000, due to completion of required active service, after 9 years and 18 days of net active service. 6. A second DD Form 214 shows the applicant was ordered to active duty as a member of his USAR unit in support of operation Iraqi Freedom on 5 January 2004, with service in Iraq from 20 March 2004 through 23 March 2005. He was honorably released from active duty on 3 July 2005 due to completion of required active service and transferred to his USAR unit. 7. A subsequently issued DD Form 215 (Correction to DD Form 214) amended the applicant’s post-deployment honorable release from active duty date to 3 July 2005. 8. U.S. Army Human Resources Command Orders A-06-514109, dated 29 June 2005 ordered the applicant to active duty for an initial period of 358 days (the length of which was subsequently extended multiple times) effective 3 July 2005 to voluntarily participate in the Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment. 9. Multiple DA Forms 4836 (Oath of Extension of Enlistment or Reenlistment) reflect the applicant extended his 21 November 2000 enlistment in the USAR on the following occasions for the following lengths of time: * 26 October 2006, for 6 months * 18 April 2007, for 6 months * 12 October 2007, for 6 months 10. On 18 September 2007, the applicant’s commander provided a statement to the PEB, showing the following: a. The applicant spent almost 16 years serving in the Regular Army and the USAR, 13 of which have been on active duty. His MOS is 63B, which requires extensive marching, running, heavy lifting, and frequent manual labor. Over the past 27 months, he has not performed in his MOS due to injuries and ailments incurred during his military career. His medical conditions have not significantly improved with either pain treatments or surgeries. He has been attending physical therapy for 2 years to cope with the pain and maintain his available range of motion. He has two herniated discs, and doctors currently inform him that surgery may cause the condition to worsen. b. was attached to the Medical Retention Processing Unit (MRPU) in June 2005 after serving a tour during Operation Iraqi Freedom with his USAR unit. He spent 2 years in the MRPU, receiving 5 total surgeries: Bilateral scalenectomies for thoracic outlet syndrome, two surgeries on his right shoulder and one on his left shoulder. He continues to experience the effects of the thoracic outlet syndrome and pain in both shoulders. During his right side scalenectomy, the phrenic nerve was jarred causing his diaphragm in the right lung to paralyze for 4 months. He has recovered from this set back. Following his left side scalenectomy, he started having severe pains in his neck and spinal region. This condition causes headaches behind his left eye which extends into the ear area. Certain movements cause severe pain that radiates up and down his spine. c. The applicant was reassigned to the Warrior Transition Unit (WTU) in June 2007. He is presently in a non-rated position and has not received a Noncommissioned Officer Evaluation Report (NCOER) for over 2 years and his medical condition has prohibited him from taking an Army Physical Fitness Test (APFT) for over 2 years. d. The applicant remains well-motivated and provides the leadership characteristics that have made him a respected NCO. He does not have any judicial or administrative actions pending. He lives with continuous pain while undergoing rehabilitation and pain management through daily medication and physical therapy. Medications have not erased his persistent pain and his physical condition prevents him from performing duties in his MOS. He has made every effort to rehabilitate himself, including surgery, painful injections in his spine, medications, electric stimulation, and physical therapy. e. The applicant has been an immense asset to the U.S. Army, but he is limited by his medical conditions. He is also concerned his medical conditions will force him to change his civilian career where he works as a mechanic at Fort Wainwright, Alaska, with the Installation Maintenance Facility. 11. The applicant’s DA Form 3349 (Physical Profile), MEB Narrative Summary (NARSUM) and DA Form 3947 (MEB Proceedings) are not in his available records for review and have not been provided by the applicant. 12. A DA Form 199 shows a PEB convened on 19 November 2007, finding the applicant physically unfit with a combined rating of 0 percent and that his disposition be separation with severance pay if otherwise qualified for the following conditions: a. Impingement syndrome, left shoulder, manifested by pain with strenuous use of the shoulder; cannot work in the overhead position, which is unfitting for a heavy equipment mechanic. Limitation of motion is abducted 164 degrees’ passive and 167 degrees forward flexion. Rated as degenerative arthritis with x-ray evidence and pain- limited motion. Rated in accordance with the Table of Analogous Codes. No mechanical loss of motion. Passive range of motion limited by pain (MEB diagnosis 1). Rated 0 percent. b. Chronic neck pain secondary to multilevel degenerative disc disease manifested by stiffness, end of range of motion pain without radiculopathy, tenderness to palpitation, deformity. Range of motion is markedly limited by pain alone (no mechanical block) with flexion of 9 degrees and combined range of cervical motion of 118 degrees. This condition is unfitting in that it prevents the Soldier from wearing a helmet, individual body armor, and the majority of functional activities required of all Soldiers. Evaluated analogous to intervertebral disc syndrome. Rated 0 percent for no mechanical loss of motion. (MEB diagnosis 2) c. Conditions listed as MEB diagnoses 3, 4, 5, 6, and 7 were determined by the Medical Treatment Facility (MTF) to meet retention standards. Further, consideration by the PEB found the conditions to be not unfitting and therefore not ratable. d. It was noted the applicant’s rating was less than 30 percent. For Soldiers with a disability rating of less than 30 percent and will less than 20 years of active Federal service, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) requires separation from service with severance pay. Severance pay is computed by multiplying monthly basic pay times 2 times each year of active Federal service – not to exceed 12. A period of 6 months or more is considered a whole year. Note that the percentage of disability is not a factor in this computation. 13. In a self-authored memorandum dated 7 December 2007, the applicant informally appealed the PEB decision, stating the following: a. He has spent over 16 years serving as a Heavy Construction Equipment Mechanic in the U.S. Army and USAR. Upon entry into the Armed Forces, he received a physical which showed him to be 100 percent physically able to perform all duties as a soldier. Over these years, he has pushed his body to certain limits which caused many medical conditions. He has scored over 300 on the extended scale of the APFT on different occasions. He has played intramural sports throughout his career. He has served as an MK19 Gunner while deployed for the·411th Engineer Battalion on many missions in and around Baghdad, Iraq. He has put my commitment to serving this great country, the United States Army, and the fight against terrorism above the concern for his own health and welfare. This commitment has taken a toll on him both physically and mentally. b. Upon returning from a tour of duty in Iraq in 2005, he was approached by the Medical Retention Processing Unit at Fort Richardson, Alaska with a chance to repair some of his medical deficiencies. Over the past 31 months, he has received many surgeries. Some of these have proved to be positive successes while others have failed and even caused other problems. He was diagnosed with bilateral thoracic outlet syndrome and received surgeries that have improved but haven't completely resolved his conditions. During the right side scalenectomy in August 2005, his phrenic nerve was bumped which caused the diaphragm in my right lung to partially paralyze for approximately 4 months. After the left side scalenectomy in February 2006, he began experiencing headaches and constant pains in his neck and down his spine. He is not able to run, jump, or make certain head and neck movements without causing an extremely sharp jolting pain that causes him to drop to his knees because his legs go numb. His right shoulder surgeries have improved some of his range of motion and strength with some residual symptoms that he is having to come to terms with living with. His left shoulder surgery has been a complete failure. He still has severe constant pain and popping throughout his left shoulder and into the neck area. His strength is deteriorating in this shoulder. c. He is presently living with constant pain and trying to rehabilitate on his own. He has been an above average athlete most of his life until now. He is no longer able to engage in sports and outdoor activities since these ailments began. He has done everything in his power to maintain a positive attitude during this MEB/PEB process, but he is beginning to feel that he has been a burden to the Army medical system over the last 2.5 years. At times, he has questioned why he hasn’t been referred to a civilian doctor to seek help with his physical ailments. His conditions have kept him from performing his duties in his MOS. The MEB/PEB process has deemed him unfit with a 0 percent rating. He feels this is an injustice after he has given more than 100 percent of himself to this great country and the U.S. Army. He believes his body is now at less than 65 percent and will continue to get worse over time due to the arthritic changes throughout his shoulders and neck. These medical conditions have caused dramatic changes in more than just his own life. His family has had to "step up to the plate" and do household chores, tasks and maintenance that he can no longer complete on his own. He is having to come to terms with his military career ending due to these medical reasons, but would ask the PEB members to re-evaluate his percentage of unfitness. 14. A second DA Form 199 shows the following: a. On 11 December 2007, a PEB convened for informal reconsideration of the applicant’s case based on review of the case file and ratings guidance. His DA Form 199, dated 19 November 2007 was superseded and replaced by this DA Form 199. b. The PEB found the applicant physically unfit and recommended a combined rating of 10 percent and that his disposition be separation with severance pay if otherwise qualified. c. He was found unfit for shoulder and neck pain, impingement syndrome, left shoulder, manifested by pain with strenuous use of the shoulder. He cannot work in the overhead positon, which is unfitting for his MOS. Limitation of motion is abducted 164 degrees and 167 degrees forward flexion. X-ray evidence indicates degenerative changes. Pain-limited motion. No mechanical loss of motion. Passive range of motion limited by pain. Chronic neck pain manifested by stiffness, end of range of motion pain, without radiculopathy, tenderness to palpitation, deformity. Range of motion is markedly limited by pain alone (no mechanical block) with flexion of 9 degrees and combined range of cervical motion of 118 degrees. This condition is unfitting in that it prevents the Soldier from wearing helmet, individual body armor, and the majority of functional activities required of all Soldiers. Rated 10 percent for 2 or more major joints or minor joint groups with positive imaging and not mechanical loss of motion (MEB diagnoses 1 and 2). d. The conditions listed as MEB diagnoses 3, 4, 5, 6, and 7 were determined to meet retention standards by the MTF and further consideration by the PEB found these conditions to be not unfitting and therefore not ratable. e. After having been advised of the findings and recommendations of the PEB and having received a full explanation of the results of the findings and recommendations and the legal rights pertaining thereto, the applicant the applicant concurred and waived a formal hearing of his case on 28 December 2007. 15. A third DD Form 214, covering the applicant’s period of service from 3 July 2005 through 1 April 2008, shows he was honorably discharged from the Regular Army on 1 April 2008, after 2 years, 8 months, and 29 days of net active service this period, due to disability with severance pay. The applicant’s separation authority is listed as Army Regulation 635-40, paragraph 4-24b(3) and his separation code is listed as JFL (Physical Disability, Severance Pay). 16. A review of the U.S. Army Human Resources Command (AHRC), Soldier Management System (SMS) confirms the applicant’s service in the USAR from 21 November 2000 through his involuntary physical disability separation with severance pay on 1 April 2008. There is no evidence of record the applicant served in the Regular Army from 3 July 2005 through 1 April 2008, but rather that he was a member of the USAR activated for the purpose of completing medical retention processing. 17. A DA Form 18 (Revised PEB Proceedings), shows the following: a. U.S. Army Physical Disability Agency (USAPDA) convened on 26 April 2008 and administratively corrected the applicant’s case in accordance with Army Regulation 635- 40, paragraph 4-22c(1), after a USAPDA review based upon changes to disability rating guidance in the 2008 National Defense Authorization Act (NDAA). b. It is noted the applicant’s disability rating is less than 30 percent Soldiers with a disability raring of less than 30 percent and with less than 20 years of service, as computed under Title 10, U.S. Code, section 1208 (active plus Reserve Component equivalent service) are separated from service with disability severance pay. c. Disability severance pay, as changed by the NDAA of 2008, is computed by multiplying monthly basic pay for 2 months by the number of combined years (but not more than 19 years) of active serve and inactive duty points (to include membership points) The number of years used for this calculation will not be less than 6 years if the disability was determined to have been incurred in the line of duty (LOD) in a combat zone or incurred during the performance of duty in combat-related operations, and no less than 3 years for all others. Not that the percentage of disability is not a factor in this computation and that a period of 6 months or more is considered a whole year. 18. A USAPDA memorandum, dated 26 April 2008, advised the applicant that his PEB Proceedings were corrected as reflected on the above-referenced DA Form 18, based upon changes to the disability rating guidance under the NDAA of 2008. There was no change to his overall rating or disposition. 19. A DD Form 215, dated 20 April 2009, corrected the applicant’s DD Form 214 covering the period ending 1 April 2008, to reflect the separation authority as Army Regulation 635-40, in accordance with NDAA 2008 and his separation code as JFO (Physical Disability, Severance Pay – Non Combat). 20. A VA letter, dated 4 June 2021, shows the applicant has the following service- connected disabilities and ratings, for a combined disability rating of 70 percent, with an unlisted effective date: * post-traumatic stress disorder (PTSD), 30 percent * degenerative joint disease, left shoulder, 20 percent * degenerative arthritis of the right shoulder, 20 percent * left ear tinnitus, 10 percent * degenerative arthritis of the cervical spine, 10 percent * spondylosis of the lumbar spine with recurrent lumbosacral strain, 10 percent * status post right mandible fracture with retained hardware and paresthesia, 10 percent * choroidal nevus, right eye, 0 percent * degenerative changes, status post fracture and surgery, right elbow, with scar, 0 percent * hearing loss left ear, 0 percent 21. 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. 22. Title 38, USC, 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. 23. 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. 24. 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 has applied to the ABCMR requesting an increase in his military disability rating and that his disability discharge disposition be changed from separate with disability severance pay to permanent retirement for physical disability. He states: “VA rating letters from MEB through present shows my medical separation should be Medical Retirement.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period under consideration shows he entered the regular Army on 3 July 2005 and was discharged with $76,744.80 of disability severance pay on 1 April 2008 under provisions in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006). c. On 19 November 2007, the applicant’s informal PEB found his “Impingement syndrome, left shoulder” and Chronic neck pain secondary to multilevel degenerative disc disease” to be his two unfitting condition for continued service. Using the Veterans Administration Schedule for Rating Disabilities (VASRD), they errantly derived disability ratings of 0% and 0%, and recommended that applicant be separated with disability severance pay. d. The applicant appealed the board’s findings and recommendation. The PEB then inappropriately combined these two separate conditions into one disability and then derived a 10% disability rating using VASRD diagnostic code (DC) 5003 - Arthritis, degenerative – as an analogous rating. The PEB again recommended the applicant be separated with severance pay. The Informal Reconsideration Physical Evaluation Board (PEB) Proceedings (DA form 199) does not record the applicant’s elections, nor his or his PEB counselor’s signature. e. Becoming statute on 28 January 2008 as part of the National Defense Authorization Act (NDAA) for 2008, 10 USC §1216a mandated that the Services adhere to the Veterans Affairs Schedule for Rating Disabilities (VASRD). “(a) UTILIZATION OF VA SCHEDULE FOR RATING DISABILITIES IN DETERMINATIONS OF DISABILITY.— (1) In making a determination of disability of a member of the armed forces for purposes of this chapter, the Secretary concerned— (A) shall, to the extent feasible, utilize the schedule for rating disabilities in use by the Department of Veterans Affairs, including any applicable interpretation of the schedule by the United States Court of Appeals for Veterans Claims; and (B) except as provided in paragraph (2), may not deviate from the schedule or any such interpretation of the schedule.” f. A ratings decision (uploaded into ACTS) shows the applicant was correctly rated for these two conditions by the VA effective the day following his discharge: DEGENERATIVE JOINT DISEASE S/P LABRAL REPAIR, LEFT SHOULDER 20% from 04/02/2008 DEGENERATIVE ARTHRITIS WITH STENOSIS, CERVICAL SPINE 10% from 04/02/2008 g. These correct ratings yield a combined military disability rating of 30% (20% combined with 10% = 28% which rounds to 30%) and a permanent retirement for physical disability. h. It is the opinion of the Agency Medical Advisor that the applicant should be permanently retired for physical disability with a combined military disability rating of 30% effective 2 April 2008. BOARD DISCUSSION: 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 the applicant’s contentions, military record, and regulatory guidance. The Board reviewed and concurred with the medical advisory finding the correct ratings yield a combined military disability rating of 30% (20% combined with 10% = 28% which rounds to 30%) and a permanent retirement for physical disability. Based on the preponderance of evidence available for review, the Board determined the evidence presented is sufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 to by * voiding his DD Form 214 discharging him from the military with severance pay for the period ending 1 April 2008 * issuing him a new DD Form 214 for the period ending 1 April 2008 showing he was permanently retired for physical disability with a combined military disability rating of 30% effective 2 April 2008 with all respective backpay and benefits 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. 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. 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. 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. 5. 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. 6. 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. 7. Title 10, U.S. Code, section 1556 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210017200 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1