IN THE CASE OF: BOARD DATE: 7 September 2022 DOCKET NUMBER: AR20220001370 APPLICANT REQUESTS: a medical retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Brief in Support of Application * Exhibit A – DD Form 214 (Certificate of Release or Discharge from Active Duty) * Exhibit B – Standard Form (SF) 600 (Chronological Record of Medical Care), 15 September 2010 * Exhibit C – Medical Documents, 25 July 2011 * Exhibit D – SF 600, 19 August 2011 * Exhibit E – DD Form 2808 (Report of Medical Examination) * Exhibit F – SF 600, 3 April 2012 * Exhibit G – Department of Veterans Affairs (VA) Rating Decision * Exhibit H – Orders 135-0034, 14 may 2012 * Exhibit I – DA Form 2166-8 (NCO Evaluation Report (NCOER)) thru 16 January 2008 * Exhibit J – NCOER thru 31 December 2008 * Exhibit K – NCOER thru 1 August 2010 * Exhibit L – NCOER thru 1 August 2009 * Exhibit M – NCOER thru 1 August 2011 * Exhibit N – NCOER thru 31 January 2012 * Exhibit O – Psychological Assessment, 24 January 2012 * Exhibit P – Disability Benefits Questionnaires (DBQ) with Supporting Documents * Exhibit Q – National Veterans Legal Services Program (NVLSP) Application * Exhibit R – Correspondence with VA 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 is requesting a medical retirement. He was discharged for unsatisfactory performance pursuant to Chapter 13 of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) for failure of two consecutive Army Physical Fitness Tests (APFT). Chapter 13 of AR 635-200 also requires that the Soldier have no underlying medical limitations. At the time of the failure, he suffered from a lumbar spine disability and bilateral upper extremity radiculopathy disability. He believes the medical conditions were the direct cause of the unsatisfactory performance on the APFT. As such, the administrative discharged was erroneous. The applicant defers to counsel’s brief for additional information, available for review by the Board, which states in part: a. Prior to 2010, when the applicant began to suffer from physical ailments, he always passed his APFT. In September 2010, the applicant began suffering from joint pain. In July 2011, he exacerbated his joint pain when he injured himself while participating in combat training. From August 2011, through the date of discharge in May 2012, the applicant sought medical attention for the pain he suffered (Exhibits D-F). While he was injured, he failed two APFTs (Exhibits M-N) and his commander discharged him despite the applicant’s medical issues. The Army erred in the administrative separation of the applicant since the applicant’s failures were directly due to “underlying medical conditions.” The applicant should have been referred into the Disability Evaluation System (DES) where he would have been processed through the medical evaluation board (MEB) and the physical evaluation board (PEB). He would have likely been retired as unfit for further military duty as a result of being 30% or more disabled due to his duty related lumbar spine and bilateral upper radiculopathy disabilities. b. For the first seven years of the applicant’s military career, he had no issued completing the APFT (Exhibits I-L). His performance evaluation (Exhibit I) states that he “always displayed a commendable military appearance and enthusiastic attitude.” In his performance evaluation through 31 December 2008, the applicant was marked as excellent and lauded for improving his APFT by 33 points, achieving an overall score of 242 points, and surpassing the company’s goal of 70 points in each event. He was viewed as a model Soldier with exemplary physical fitness which was regularly improving, and he was used as an example for recruits, subordinates, and peers. c. The applicant began having physical fitness issues in late 2010 and sought medical advice. The applicant reported to his primary care manager (Exhibit B) that he had been having “joint pains throughout his body… he was feeling like he had low energy the past 3 weeks.” In July 2011, the physical ailments began to further interfere with his duty performance after an injury during combative exercises (Exhibit C). He was placed on a temporary profile through 25 August 2011 which placed limitations on his APFT. In August 2011, the applicant’s evaluation (Exhibit M) noted he failed to complete the two mile run in the allowed time, despite being granted a temporary profile in July 2011. Additionally, the evaluation indicated that he approached special population PT with vigor and enthusiasm and had not had an opportunity to retest. The applicant returned to the clinic on 19 August 2011, days before his profile was sent to expire and he received an “amended profile” due to lateral thoracic pain. Despite his continued pain, the dates for the profile were not changed and his back pain continued through the end of 2011. His medical records in Spring 2012 (Exhibit F) demonstrated that his pain had not abated, and he sought another profile in April 2012. The applicant’s evaluation (Exhibit N) for the rated period indicated the applicant failed a second consecutive APFT. He was subsequently discharged. d. The applicant was given a psychological assessment (Exhibit O) as part of the separation process on 20 January 2012. The assessment indicated the applicant’s discharge was not based on psychological or mental issues and “the evaluation did not result in a clear diagnosis.” The applicant requested a profile to address his physical ailments on 3 April 2012, and no profile was granted. He was administratively discharged on 29 May 2012. The VA awarded the applicant disability ratings for lumbar strain (40%), right ulnar neuritis (30%), and left ulnar neuritis (20%) effective 30 May 2012, the day following his discharge. The Command failed to properly evaluate the applicant’s ailments and the discharge was inappropriate under the circumstances. Because the applicant suffered injury while on active duty, in service, as a result of training for service, and through no misconduct or willful neglect, he meets the DES requirements for physical disability and should have been referred to DES by his commanding officer. The applicant and his counsel request the Board change his reason for discharge to reflect medical retirement with a merited 40% rating at the time of discharge. 3. The applicant and his counsel provide: a. The below listed documents to be referenced in the service record: * DD Form 214 effective 29 May 2012 (Exhibit A) * Orders 135-0034 dated 14 May 2012 (Exhibit H) * NCOER thru 16 January 2008 (Exhibit I) * NCOER thru 31 December 2008 (Exhibit J) * NCOER thru 1 August 2010 (Exhibit K) * NCOER thru 1 August 2009 (Exhibit L) * NCOER thru 1 August 2011 (Exhibit M) * NCOER thru 31 January 2012 (Exhibit N) b. Standalone medical records, tabbed by counsel as follows: * SF 600 dated 15 September 2010 (Exhibit B) – joint pain and low energy * Medical Documents dated 25 July 2011 (Exhibit C) – SF 600 for injury during combative exercises with two DA Forms 3349 (Physical Profile) due to back injury with an expiration date of 25 August 2011 * SF 600 dated 19 August 2011 (Exhibit D) – visit to renew/amend profile * DD Form 2808 (Exhibit E) – only page 3 of 3 with examiner signature summarized defects as borderline hypertension, lower/middle back pain, right arm pain and numbness, and depression/anxiety * SF 600 dated 3 April 2012 (Exhibit F) – applicant requested profile, examiner “could not do profiles” and he would have to see PA or physician c. A VA Rating Decision dated 30 October 2013 (Exhibit G) notified the applicant a decision had been rendered on his claim to include: * duodenal ulcer – 60% effective 21 August 2012 * lumbar strain and lumbar scoliosis – 40% effective 30 May 2012 * ulnar neuritis, right – 30% effective 30 May 2012 * ulnar neuritis, left – 20% effective 30 May 2012 * left knee recurrent patellar subluxation/dislocation – 10% effective 30 May 2012 * left knee patellofemoral syndrome – 10% effective 30 May 2012 * right knee recurrent patellar subluxation/dislocation – 10% effective 30 May 2012 * fibromyalgia – 10% effective 30 May 2012 * tinnitus – 10% effective 30 May 2012 * 12 additional medical conditions – denied d. A Psychological Assessment dated 24 January 2012 (Exhibit O) which states the evaluation was for the purpose of providing mental status data needed to continue with discharge processing; however, the evaluation did not result in a clear diagnosis. Noteworthy, were the reported and observed anxious symptoms, moderate to high stress, appears to trigger obsessive, and sometimes paranoid ideation. The applicant’s sleep was consistently poor, anger and frustration were predominant, and he found it extremely difficult to relax at times. The applicant could benefit from support for anxiety and sleep difficulties following his discharge. e. The applicant’s DBQs with supporting documents (Exhibit P – 187 pages) include: * bloodwork results * diagnostic test results * radiology reports * DBQ – Esophageal Conditions * DBQ – Scars/Disfigurement * DBQ – Skin Diseases * DBQ – Respiratory Conditions * DBQ – Hypertension * DBQ – Hip and Thigh Conditions * DBQ – Knee and Lower Leg Conditions * DBQ – Neck (Cervical Spine) Conditions * DBQ – Back (Thoracolumbar Spine) Conditions * DBQ – Muscle Injuries * DBQ – Headaches (Including Migraine Headaches) * DBQ – Fibromyalgia * DBQ – Peripheral Nerves Conditions * Medical Opinions (completed by the examiner) * audiology reports * DBQ – Hearing Loss and Tinnitus * DBQ – Ear Conditions f. A NVLSP application dated 23 April 2019 (Exhibit Q), wherein the applicant requests assistance with obtaining a medical retirement due to his rated disabling conditions. g. Correspondence with VA (Exhibit R) includes two letters from the NVLSP requesting documents pertaining to the applicant and a response from VA indicating they had provided the requested documents on a CD. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 9 July 2003. b. A DD Form 2808, dated 5 January 2002, shows the applicant was undergoing an examination for the purpose of enlistment. The applicant’s clinical evaluation was marked normal and in block 74a (Examinee/Applicant) he was marked qualified for service. c. His Enlisted Record Brief shows he served in Korea from 23 August 2004 to 26 January 2008 with no deployments documented. d. The applicant’s NCOERs for the below periods show the following in Part IV, Block c. (Physical Fitness & Military Bearing): * 1 August 2007 thru 16 January 2008 – passed APFT 7 November 2007; success – always displayed a commendable military appearance and enthusiastic attitude * 17 January 2008 thru 31 December 2008 – passed APFT 15 October 2008; excellence – improved APFT by 33 points, surpassed company goal, recognized as company’s example for proper form on the APFT * 1 January 2009 thru 1 August 2009 – passed APFT 19 June 2009; success – improved score by 23 points and set a positive example for subordinates, peers, and superiors * 2 August 2009 thru 1 August 2010 – passed APFT 27 July 2010; success – improved 2 mile run by 2 minutes, increased APFT score by 55 points, maintained professional appearance and military bearing at all times * 2 August 2010 thru 1 August 2011 – failed APFT 12 June 2011; needs improvement – failed to complete the 2 mile run, approached Special Population PT with vigor and enthusiasm, has not had opportunity to retest * 2 August 2011 thru 31 January 2012 – failed APFT 4 November 2011; needs improvement – failed to complete the 2 mile run, a second APFT failure * 1 February 2012 thru 24 May 2012 – failed APFT 12 April 2012; needs improvement – failed to meet APFT standard in 2 mile run, failed to set standard for others to emulate e. The applicant’s separation packet was not in the available service record. f. Orders 135-0034, dated 14 May 2012, discharged the applicant from active duty with an effective date of 29 May 2012. Two amendments were published to amend dependent information: * Orders 138-0015 dated 17 May 2012 * Orders 139-0009 dated 18 May 2012 g. He was honorably discharged from active duty on 29 May 2012. His DD Form 214 shows he completed 8 years, 10 months, and 21 days of active service. He was assigned separation code JHJ and the narrative reason for separation listed as “Unsatisfactory Performance.” 5. On 30 June 2022, the U.S. Army Physical Disability Agency (USAPDA) legal advisor rendered an advisory opinion in the processing of this case. He opined: a. Temporary profiles by their very definition are not meant to be permanent. Instead, they are meant to be protective so that the Soldier's condition can be treated. In order to be referred to the DES, a Soldier must have a permanent P3 or 4 profile. To be issued a permanent P3 or 4 profile, the Soldier's treating provider must find that the Soldier has reached his medical retention determination point (MRDP) under AR 40- 501, Chapter 3. The provider then must submit the condition(s) to the profile approving authority who also must agree that the condition(s) has reached its MRDP and agree to issue a permanent P3 or 4 profile. It is clear from the facts, the applicant’s treating provider, for whatever medical reasons, felt that he had not reached MRDP for his conditions. Indeed, it would appear that his treating provider did not believe that he even warranted the need to renew his temporary profile. Without a profile, the Commander scheduled the applicant for an APFT, which he then failed twice. The result of which was that he was chaptered under AR 635-200, Chapter 13. b. The applicant makes a rather far leap to the conclusion that had he been referred to the DES either by his Commander, his treating provider, the profile approving authority, or, perhaps, someone else, then it would have been a foregone conclusion that he would have been found to fail retention standards by the Medical Evaluation Board (MEB) and found to be unfit by the Physical Evaluation Board (PEB). The applicant’s flawed rational for this stretched conclusion is that the VA rated his conditions 15 months after he was discharged. This logic fails to grasp that the VA will rate any service connected condition at any point in a veteran's lifetime. Sometimes, VA ratings will increase, and, sometimes, they will decrease. The mere presence of a chronic medical condition does not equate to it failing medical retention standards (the standard at the MEB) or it being found unfit (the standard at the PEB). This is true even if the condition is rated rather high by the VA. Simply put, the applicant’s arguments rest on a large assortment of speculation that is a decade removed from the facts. Since the applicant was not even on a temporary profile at the time of his discharge; thus, he was eligible for referral to DES and the request is legally insufficient. 6. On 1 July 2022, the advisory opinion was forwarded to the applicant for acknowledgment and/or response. The applicant has not provided a response to date. 7. The applicant's service record was 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). 8. By regulation (AR 635-200), separation proceedings are required for Soldiers without medical limitations who have two consecutive failures of the Army physical fitness test per AR 350–1 or who are eliminated for cause from Noncommissioned Officer Education System courses, unless the responsible commander chooses to impose a bar to re-enlistment per AR 601–280 (RA Soldiers) or AR 140–111 (USAR AGR Soldiers). 9. By regulation (AR 635-40), 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. 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: a. 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. b. 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. 10. 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. Once a determination of physical unfitness is made, disabilities are rated using the VA schedule of disability rating. 11. 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. 12. 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. 13. 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. 14. Based on the applicant’s condition the Army Review Boards Agency medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. 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: The applicant is applying to the ABCMR requesting, in essence, a referral to the Disability Evaluation System. He states: “I was discharged for unsatisfactory performance pursuant to Chapter 13 of AR 635-200 for failing two consecutive Army Physical Fitness Tests. However, Chapter 13 of AR 635-200 requires that the soldier have no underlying medical limitations. 2. At the time of failure of the Army Physical Fitness Tests, I suffered from a lumbar spine disability and bilateral upper extremity radiculopathy disability which were the direct cause of the unsatisfactory performance on the Army Physical Fitness Tests. As such, administrative discharge under AR 635-200 for failure to complete two Army Physical Fitness Tests was erroneous.” 3. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of Service under consideration shows he entered the regular Army on 9 July 2003 and was honorably discharged on 29 May 2012 under the provisions in chapter 13 of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009) after having failed multiple consecutive Army physical fitness test (APFT). 4. An annual NCO Evaluation Report (DA Form 2166-8) with a thru date of 1 August 2011 shows the applicant failed his APFT on 12 June 2011 having “failed to complete the two-mile run in the allotted time for his age group with a run time of 18:56 for a total of 38 points.” A minimum of 60 points on a 100-point scale is required to pass each APFT event. 5. The applicant was placed on a one-month non-duty limiting temporary profile for “back injury” on 25 July 2011. 6. The final page of a Report of Medical examination (DD form 2808) dated 30 November 2011 was submitted with the application. The first two pages were not submitted with the application nor uploaded into iPERMS. It shows the applicant to have borderline hypertension, lower/mid back pain, right arm pain/numbness, and depression anxiety. The provider recommended care plans for three of the issues: Borderline hypertension: Monitor BP monthly Lower/mid back pain: Initiate anti-inflammatories; if no improvement will get x-ray or CT scan. Depression anxiety: Continue to see clergy for situational depression. Follow-up with family services as needed with medical if depression of anxiety worsens. Though the purpose of the examination is not known, the provider noted no limiting conditions, that he was fully mission capable, and found him qualified for service. 7. A Change of Rater NCO Evaluation Report (DA Form 2166-8) from 2 August 2011 thru 31 January 2012 shows the applicant failed his second APFT on 4 November 2011 having again “failed to complete the two-mile run within the allotted time for his age group; failed a second consecutive APFT with a time of 18:47 for a total of 41 points.” His rater bottom-blocked him as “marginal,” and his senior rater blocked his performance and overall potential as fair, the next to last block in a series of 5 blocks. He went on to opine: * “do not promote to Sergeant First Class at this time * send to Advanced Leaders Course when eligible * technically sound Signals Analyst: send to Intermediate Communications Signals Analysis Course to advance knowledge * performed well at duty position; failed as a Staff Sergeant to set the example for Junior NCOs in the Detachment” 8. The applicant received a psychological evaluation on 20 January 2012 which yielded no mental health diagnosis, but the provider did observe “anxious symptoms:” {Applicant} was evaluated on 20 January 2012 by the undersigned at the Employee Assistance Program (EAP). The nature of the assessment was to provide {Applicant}'s Army Commanders with mental status data needed to continue with discharge processing. {Applicant}'s proposed discharge is not based on psychological/mental health issues. The evaluation did not result in a clear diagnosis, but noteworthy were the reported and observed anxious symptoms. Moderate to high stress, which {Applicant} has reportedly experienced since he arrived in Alice Springs in August 2009, appears to trigger obsessive and sometimes paranoid ideation. {Applicant}'s sleep is consistently poor per his report and he finds it extremely difficult to relax at times. Anger arid frustration are also predominant in {Applicant}'s day to day life. During his time here in Alice Springs, {Applicant} has been able to manage stressors and anxious symptoms in a relatively adaptive fashion; however, it would likely be beneficial for {Applicant} to receive further psychiatric assessment upon discharge from the military. A more comprehensive assessment may yield information regarding the potential source(s) of the anxious symptoms. Subsequent to discharge, {Applicant} may profit from support for anxiety and sleep difficulties. 9. On 4 March 2012, the applicant returned to his troop medical clinic requesting a physical profile for shoulder pains. No shoulder related diagnosis was listed and it appears no such physical profile was issued. He was diagnosed with anxiety disorder, stressful situations, and after a discussion of treatment options, was started on sertraline 25mg daily. 10. A second Change of Rater NCO Evaluation Report (DA Form 2166-8) from 1 February 2012 thru 24 May 2012 shows the applicant failed two more APFTs during this 4-month rating period: “failed to meet Army Physical Fitness Test (APFT) standards for the two-mile run event; failed APFT twice during this rating period.” His rater again bottom-blocked him as “marginal,” and his senior rater now bottom-blocked his performance as poor and overall potential as fair, the next to last block in a series of 5 blocks. He went on to opine: * do not promote; unable to comply with APFT standards * do not send to Senior Leaders Course at this time * does not possess the potential for any leadership position within the Military Intelligence Corps * not ready for positions of greater responsibility 11. The applicant underwent a clearance evaluation on 22 May 2012: Service Member seen as walk-in for records review for ETS Clearing. Chapter for APFT failure. Going to Fort Gordon Georgia with family. Has MI {military intelligence} civilian job at Pensacola Florida. 12. His mental status examination was documented as normal and he was cleared to separate. 13. Neither the applicant’s separation packet nor documentation addressing his administrative separation were submitted with the documentation or uploaded into iPERMS. 14. There is no evidence the applicant had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge; or was a significant contributing factor or cause for his four consecutive for-record APFT failures. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. 15. 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. 16. It is the opinion of the Agency Medical Advisor that a referral to the DES is indicated. 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 counsel’s statement, 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 the medical review and the U.S. Army Physical Disability Agency (USAPDA), the Board concurred with the advising official finding that a referral of his case to the Disability Evaluation System (DES) is not warranted. During deliberation, the Board found the applicant was not on a profile at the time of his discharge, thus making him ineligible for referral to the DES. 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 the preponderance of evidence, the Board determined that relief is without merit. 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. 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 13 of the regulation states a Soldier may be separated when it is determined that he/she is unqualified for further military service because of unsatisfactory performance. Paragraph 13-2 e. further noted initiation of separation proceedings is required for Soldiers without medical limitations who have two consecutive failures of the Army physical fitness test per AR 350–1 or who are eliminated for cause from Noncommissioned Officer Education System courses, unless the responsible commander chooses to impose a bar to re-enlistment per AR 601–280 (RA Soldiers) or AR 140–111 (USAR AGR Soldiers). 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS//