IN THE CASE OF: 

		BOARD DATE:  15 June 2022

		DOCKET NUMBER: AR20210017271


APPLICANT REQUESTS: a physical disability retirement.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:
DD Form 149 (Application for Correction of Military Record)

FACTS:

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

2.  The applicant states he was honorably discharged in July 2014 and is requesting his 
record be reviewed for medical retirement. 

   a.  On 9 July 2013, he was involved in an indirect fire (IDF) blast that resulted in 
battle injuries, “such as traumatic brain injury (TBI) and post-traumatic stress disorder 
(PTSD).” He spent 10 days at the “CCC” and subsequently returned to base on light 
duty for a short period of time before he was returned to full duty. During that time, he 
also reported back and shoulder pain. He does not believe that he was fit for duty 
following the explosion; however, the medical team did not follow up with imaging to 
determine the impact of the explosion on his back, neck, or knees. His initial disability 
claim was filed during active duty, but was not completed until after he was honorably 
discharged. He received a 90% disability rating. He has made numerous attempts to 
obtain civilian employment, but has been unsuccessful due to his service-connected 
injuries. He has imaging studies that show bulging/herniated discs in his neck and back, 
Osgood-Schlatter disease, and thinning cartilage in his knees. He is now rated at 100% 
for his service-connected injuries and is unable to receive life insurance. He respectfully 
requests that his honorable discharge be changed to reflect a medical retirement.
	
b.  Upon his return from deployment, there was a big push to get guys who were not 
reenlisting out of the Army. He was young, lost, and not mentally stable. He was 
convinced to ETS (expiration for term of service) because a medical discharge would 
take more than a year and require a significant amount of paperwork from the 
leadership. He was a raging alcoholic following his discharge and he was lost in life with 
a clouded perception of reality in regards to his injuries. His life changed after he had 
his first child in 2015 and he gained purpose and direction. He has been 100% sober 
since 2018 and sobriety has helped him focus on his mental health and physical health. 
Part of his treatment in mental health is to avoid minimizing his injuries. In his eyes he is 
lucky and blessed to be alive and have all of his limbs. His back, neck, knees, PTSD, 
and TBI are all hidden injuries that make him feel weak compared to the injuries of his 
fellow Soldiers.

3.  On 16 February 2022, the Army Board for Correction of Military Records (ABCMR) 
notified the applicant that in order for the ABCMR to consider the application, he must 
provide a copy of medical documentation and other supporting documents that support 
the claim. The case was placed on a 30-day hold and the applicant has not responded 
to date.

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

   a.  He enlisted in the Regular Army on 11 April 2011.

   b.  The service record includes the applicant’s medical evaluations for the purposes 
of enlistment which indicated he was generally in good health with the physician 
documenting he wore glasses. The applicant was marked qualified for service.
   
*	DD Form 2807-1 (Report of Medical History) dated 29 December 2010
*	DD Form 2808 (Report of Medical Examination) dated 29 December 2010

   c.  The Enlisted Record Brief shows he deployed to Afghanistan from 10 March 2013 
through 20 November 2013 (8 months and 11 days).

	d.  Orders 069-0013, dated 10 March 2014, discharged the applicant from active 
duty not by reason of physical disability with an effective date of 31 July 2014.

	e.  He was honorably discharged on 31 July 2014. His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) shows he completed 3 years, 3 months, and 20 
days of active service. He was assigned separation code MBK and the narrative reason 
for separation listed as “Completion of Required Active Service.”

	f.  Orders D-01-900529, dated 8 January 2019, honorably discharged the applicant 
from the U.S. Army Reserve effective 8 January 2019.

5.  A review of the applicant’s record confirms administrative entries were omitted on his 
DD Form 214. The entry will be added to his DD Form 214 as an administrative 
correction and will not be considered by the Board. The Board will consider his request 
for a medical retirement.

6.  The applicant's service record is void of documentation that shows he was treated 
for an injury or an illness that warranted his entry into the Physical Disability Evaluation 
System (PDES). Additionally, there is no indication he underwent a medical evaluation 
board (MEB) or a physical evaluation board (PEB).

7.  By regulation (AR 40-501), medical evaluation of certain enlisted military 
occupational specialties and officer duty assignments in terms of medical conditions and 
physical defects are causes for rejection or medical unfitness for these specialized 
duties. If the profile is permanent the profiling officer must assess if the Soldier meets 
retention standards. Those Soldiers on active duty who do not meet retention standards 
must be referred to a medical evaluation board.  

8.  By regulation (AR 635-40), the Army disability system sets forth policies, 
responsibilities, and procedures that apply in determining whether a Soldier is unfit 
because of physical disability to reasonably perform the duties of his or her office, 
grade, rank, or rating. The regulation states disability compensation is not an 
entitlement acquired by reason of service-incurred illness or injury; rather, it is provided 
to Soldiers whose service is interrupted and who can no longer continue to reasonably 
perform because of a physical disability incurred or aggravated in military service.

9.  The Army rates only conditions determined to be physically unfitting at the time of 
discharge, which disqualify the Soldier from further military service. The Army disability 
rating is to compensate the individual for the loss of a military career. The VA does not 
have authority or responsibility for determining physical fitness for military service. The 
VA may compensate the individual for loss of civilian employability.

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

11.  Title 38, Code of Federal Regulations, 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/her duties. Unlike the Army, the VA can 
evaluate a Veteran throughout his or her lifetime, adjusting the percentage of disability 
based upon that agency's examinations and findings.

12.  MEDICAL REVIEW:
The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this 
case. Documentation reviewed included the 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, in essence, a referral to the 
Disability Evaluation System (DES).  He states:

“I was honorably discharged in July 2014 from the United States Army and would 
like for my record to be reviewed for medical retirement after being involved in an 
explosion that has forever changed my quality of life and civilian employability ... 
My initial disability claim was filed during active duty but was not finalized until I 
was honorably discharged, with a VA rating of 90%.  I was honorably discharged 
in July 2014 and since then have made several attempts to sustain civilian 
employment but have been unsuccessful due to service connected injuries.”

    b.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  His DD 214 shows the applicant entered the regular Army 
on 11 April 2011 and was honorably discharged at the completion of his required active 
service on 31 July 2014 under provisions provided in Chapter 4 of AR 635-200, Active 
Duty Enlisted Administrative Separations (17 December 2009).  It shows he served in 
Afghanistan from 24 February 2013 thru 11 November 2013. 

    c.  His pre-entrance Report of Medical History and Report of Medical Examination 
show the applicant was in good health, without any significant past medical history or 
conditions.

    d.  AHLTA records show the applicant sustained a concussion from an improvised 
explosive device (IED) blast on 9 June 2013.  He had some dizziness, headaches, and 
decreased concentrating ability by history along with several findings consistent with a 
mild traumatic brain injury on his physical examination, and so was referred to 
occupational therapy (OT) for further evaluation and rehabilitation.  

    e.  He was seen daily by OT from 10-13 June 2013 in what was called the “CCC” 
which is assumed to have meant “Concussion Care Clinic” or the like.  His last OT note 
shows he had done well with rehab:
(1) “SM {service member} reports headache pain at 0.8 cm on 10 cm scale and 
describes it as frontal lobe pressure.  SM reports tinnitus continues on the RT 
side today and states that the tinnitus in LT ear has stopped and tinnitus in RT 
ear is decreasing.  SM reports only sleeping for a total of 6 hours last night and 
waking up x 6 and was able to fall asleep 15 minutes later after each wake up.
SM was cleared for RTD by PCM.

(2) PLAN: Protected rest, community reintegration, and graded return to function.  
Limit physical and cognitive activity pending 0/10 headache.  SM will f/u with 
provider as needed

(3) Profile Status: light duty/RTD

    f.  The applicant was seen 4 times in June and July for “Military Combat Stress 
Reaction.”

    g.  After redeployment, the applicant sought care for post-traumatic headaches, 
behavioral health concerns, and low back pain.  

    h.  There were four encounters for post-traumatic headaches (HA).  From the final 
encounter on 26 March 2014 which was with neurology:

22-year-old active duty male presents for follow up for headaches and tremor ... 
Today, patient reports HA have been stable since last month, occurring 2-3 times 
per week and lasting for about an hour.  He has not had to use Maxalt.
Continued hand tremor.  not interfering with activities.
Plan: Increase Topamax to 75mg BID {twice a day}

    i.  The applicant was seen monthly by behavioral health from November 2013 thru 
May 2014 during which he was always diagnosed with anxiety disorder.  From his 
penultimate visit on 22 April 2014:

(1) PTSD-  patient reported some improvement in PTSD symptoms with 
discontinuation of training at night.  He is currently tasked to work guard duty.

(2) He is working the night shift and states that he has had more difficulties with 
sleep as a result.   He anticipates coming off of night duty this week

(3) Panic-  Reported that panic has improved since last appointment

(4) Depression- denied overt depression. patient denied any suicidal ideation, 
intent, or plan.  No appearance of imminent risk noted

(5) Sleep-  Seroquel was too sedating and discontinued-- current difficulties 
related to shift work

(a) Prazosin- well tolerated without side effects-good effect on nightmares

(b) Seroquel- sedating and discontinued

(c) Celexa- well tolerated- general improvement

    d.  And from his final behavioral health visit on 22 May 2014:

(1) Cleared for discharge from psychiatric perspective 

(2) Patient cleared for discharge from psychiatric perspective - 3-month supply of 
medication

(3) Demographics:  23-year-old male, specialist, active duty army, single- ETS in 
June- terminal leave on June 19 and goes to Chicago.

(4) Chief complaint:  "a lot of anxiety"

(5) PTSD- patient reports more anxiety related to pending discharge as well as 
having his motorcycle stolen.  

(6) Panic- reported continued intermittent panic- seems to be worsened in the 
context of stressors.

(7) Depression- denied overt depression. patient denied any suicidal ideation, 
intent, or plan.  No appearance of imminent risk noted

(8) Sleep-  Melatonin was ineffective -- he requested to restart Seroquel as it did 
help for sleep he would use sparingly - he understood the risk of sedation in the 
daytime

(a) prazosin- well tolerated without side effects-good effect on nightmares

(b) melatonin- ineffective

(c) Celexa- well tolerated-  some recent worsening of symptoms in the 
context of stressors

    e.  The applicant was seen twice for low back pain (LBP).  From the final visit on 12 
March 2014:

(1) “Sm comes in today with LBP x7months.  Sm is here to F/U from his previous 
visit. Sm was given Citalopram for back pain but Sm states it has no effect. Sm is 
already on profile {temporary} for back pain, and does not run, ruck, jump, or put 
strain on his back.  Sm was told on last visit that if pain did not become relieved, 
that x-rays would be the next course of action. 

(2) Sm says he does the stretches in the pamphlet he was given, but states he 
only receives temporary relief. Sm says the pain does not radiate up nor down 
his buttocks or in his legs.  No numbness or tingling noticed.

(3) Assessment/Plan: Lower back pain: Unremarkable PE {physical 
examination}. 

(4) Given the long standing LBP x 7 months, I will get an x-ray.  Patient's profile 
was extended and is to follow up after x-ray with PCM. He is instructed to 
continue his self-care plan.

    f.  While the applicant certainly had several medical conditions, there is no evidence 
one or more of them would have failed the medical retention standards of chapter 3, AR 
40-501 prior to his discharge.  Thus, there was no cause for referral to the Disability 
Evaluation System.  

    g.  Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or 
Separation (20 March 2012) states: 

“The mere presence of an impairment does not, of itself, justify a finding of 
unfitness because of physical disability. In each case, it is necessary to compare 
the nature and degree of physical disability present with the requirements of the 
duties the Soldier reasonably may be expected to perform because of their office, 
grade, rank, or rating.” 

    h.  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.

    i.  It is the opinion of the Agency Medical Advisor that a referral of his case to the 
DES is not warranted.    


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation. Upon review of the applicant’s petition, available military records and 
medical review, the Board concurred with the medical opinion finding that referral of the 
applicant’s case to the DES is not warranted.  The Board noted the applicant certainly 
had several medical conditions but, there is no evidence one or more of them would 
have failed the medical retention standards prior to his discharge.  Thus, there was no 
cause for referral to the Disability Evaluation System.  The Board agreed the VA applies 
its own polices and regulations to make service connection and rating determinations. It 
is not bound by determinations made by the Army. With that, unlike the VA, the Army’s 
determination of fitness and its mandatory application of VA ratings is a snapshot in 
time whereas the VA can make service connection and rating determinations 
throughout the veteran’s life.

2.  The Board determined 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. Based on this, the Board 
denied relief. 

3.  Prior to closing the case, the Board did note the analyst of record administrative 
notes below, and recommended the correction is completed to more accurately depict 
the military service of the applicant.
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:

Except for the correction addressed in Administrative Note(s) below, the Board found 
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.


ADMINISTRATIVE NOTE(S):

A review of the applicant’s service records show he is authorized foreign service not 
annotated on his DD Form 214. As a result, correct Block 12f (Foreign Service) of his 
DD Form 214 to reflect 8 months and 11 days.

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.  Paragraph 3-2 states disability compensation is not an entitlement acquired by 
reason of service-incurred illness or injury; rather, it is provided to Soldiers whose 
service is interrupted and who can no longer continue to reasonably perform because of 
a physical disability incurred or aggravated in military service.

	b.  Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting 
disabilities must meet the following line-of-duty criteria to be eligible to receive 
retirement and severance pay benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier was 
entitled to basic pay or as the proximate cause of performing active duty or inactive duty 
training.

		(2)  The disability must not have resulted from the Soldier's intentional 
misconduct or willful neglect and must not have been incurred during a period of 
unauthorized absence.

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.  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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20210017271


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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