IN THE CASE OF:  
BOARD DATE:  19 August 2022 
DOCKET NUMBER: AR20220001957 


APPLICANT REQUESTS:  in effect, a medical discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States)

•DD Form 214 (Certificate of Release or Discharge from Active Duty)

•Department of Veterans Affairs (VA) Disabilities Rating List

•VA Medical Records (60 pages)



FACTS: 

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

2.The applicant indicates, based on his marked items on the DD Form 293, he isrequesting a review of his discharge due to traumatic brain injury (TBI) and other mentalhealth conditions that were incurred as a result of Operation Iraqi Freedom (OIF).

3.The applicant provides:

a.His DD Form 214 for active service from 19 June 2006 through 8 December2013. 

b.A list of disabilities rated by VA include the following, for a total combineddisability rating of 100%: 

•left eye condition – not service connected

•scar, right wrist – 0%

•post-traumatic stress disorder (PTSD) – not service connected

•tinnitus – 10%

•limitation of flexion, left knee – 10%


•limitation of extension, left knee – 0%

•temporomandibular joint (TMJ) dysfunction – 40%

•knee strain and internal derangement, left knee – 20%

•major depressive disorder with anxiety – 50%

•deltoid ligament sprain and internal derangement, left ankle – 10%

•ganglion cyst, right wrist, status post (s/p) excision with residuals – 10%

•tension headaches – 50%

•erectile dysfunction – 0%

•obstructive sleep apnea – 50%



c.His VA medical records (60 pages) for treatment received from approximately 28June 2009 through 28 September 2018. 

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

a.He enlisted in the Regular Army on 19 June 2006.



b.A DD Form 2808 (Report of Medical Examination), dated 6 March 2006, showsthe 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 the below listed foreign service:

•Germany from 22 November 2006 through 15 January 2009

•Iraq from 18 March 2009 through 20 February 2010



d.Orders 065-0012, dated 6 March 2013, discharged the applicant from active dutywith an effective date of 8 December 2013. Orders 206-0007, dated 25 July 2013, amended Orders 065-0012 to approve the applicant for overseas separation. 

e.He was honorably discharged from active duty on 8 December 2013. His DDForm 214 shows he completed 7 years, 5 months, and 20 days of active service with 4 years of total prior active service. He was assigned separation code KBK and the narrative reason for separation listed as “Completion of Required Active Service.” 

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

6.By regulation (AR 40-501), medical evaluation of certain enlisted militaryoccupational specialties and officer duty assignments in terms of medical conditions andphysical 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.   

7.By regulation (AR 635-40), the mere presence of a medical impairment does not inand of itself justify a finding of unfitness. In each case, it is necessary to compare thenature and degree of physical disability present with the requirements of the duties theSoldier 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 receiveretirement and severance pay benefits:

a.The disability must have been incurred or aggravated while the Soldier wasentitled 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 orwillful neglect and must not have been incurred during a period of unauthorized absence. 

8.The Army rates only conditions determined to be physically unfitting at the time ofdischarge, which disqualify the Soldier from further military service. The Army disabilityrating is to compensate the individual for the loss of a military career. The VA does nothave authority or responsibility for determining physical fitness for military service. TheVA may compensate the individual for loss of civilian employability.

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

10.Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for ratingdisabilities. The VA awards disability ratings to Veterans for service-connectedconditions, including those conditions detected after discharge. As a result, the VA,operating under different policies, may award a disability rating where the Army did notfind the member to be unfit to perform his/her duties. Unlike the Army, the VA canevaluate a Veteran throughout his or her lifetime, adjusting the percentage of disabilitybased upon that agency's examinations and findings.

11.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/or 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 without noting his specific request on hisDD 293.  Because the applicant submitted a VA Rating Decision and VA medical documentation with his application, it will be assumed he is requesting a referral to the Disability Evaluation System (DES).   

b.The Record of Proceedings details the applicant’s military service and thecircumstances of the case.  His DD 214 for the period of Service under consideration shows he entered the regular Army on 19 June 2006 and was honorably discharged on 8 December 2013 at the completion of his required active service under authority provided in chapter 4 of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009).   

c.The applicant was first seen for behavioral health care on 12 September 2013 witha total of seven encounters prior to his discharge in December 2013.  His diagnosis was adjustment disorder with anxiety.  From his final behavioral health encounter on 19 November 2013: 

“This Soldier is ETS’ing from the military and he is requesting a German out.  He is putting in a VA claim so he can continue medical care.  His current wife is German and he is looking for a European out.  He is looking for work in the post office.   He reports chronic insomnia and headaches.  He saw psychologist who diagnosis Adjustment Disorder.  He completed the BHDP which suggest mild depression.   

The PTSD screen was elevated but not diagnostic.  He has been deployed as a logistician and had 2 deployments to the Persian gulf with the Navy.  He denies being in acute combat.  He completed the ISI which is 23 which suggests severe insomnia.  He reports trouble sleeping due to and headaches related to sleeping on his back.  He has to sleep in his side.  Past history of TBI evaluated in 2008 after a fall on the stairs.  Headaches are reported since that time.  He does not have headaches at other times. 

d.He was seen for chronic headaches and memory issues on 7 November 2013,after which the provider opined: 

33-year-old male with history  of severe concussion in the remote past.  He hassleep disturbance;  sleep disturbance presents with memory impairment andbalance disturbance as well as irritability.  Patient has multiple issues ongoingthat will require several months to figure out and treat appropriately. I advisedhim to let his PCM and social worker know that it would be best for him to have aMed Hold

e.A nurse case manager made follow-up appointment for and discussed this withthe applicant.  The applicant desired to proceed with his voluntary separation as seen in her 26 November 2013 telephone consult: 

“Case manager {CM} received a telephone call from SM {Service Member}.  Reports after his ETS Dec. 8, 2013, he can still go out in the community to attend appointments and pay 30% of bills.  He spoke with the local Tricare representative who informed him of the process.  Stated since he would have a long drive here, he prefers to cancel these appointments and attend locally himself on the economy.  CM will communicate to have appts. cancelled per his request.” 

f.An ingrown toenail was the only other medical condition for which the applicantwas evaluated/treated during his final year of service. 

g.AHLTA shows that less than one month prior to his voluntary separation from theArmy, the applicant underwent on pre-employment post office physical on 20 November 2013.  From this encounter: 

History of present illness 

33-year-old active-duty male logistics specialist presents to HHF for anemployment physical.  There are no other complaints at this time.

Excellent general overall feeling /health. 

Back pain. 
 Visit is not deployment related. 

Pain Severity   0 / 10. 

PHQ-2 Depression Screen: Negative. 

Patient feels safe and unthreatened in their personal relationships. 

Patient has NOT received other care since their last visit with this clinic. 

h.The provider noted the applicant was on trazodone 50 mg at night as needed forsleep.  The applicant had no complaints on his review of systems.  The physical examination was annotated as normal.  The provider concluded: 

33-year-old male retiree here for Post Office Physical.

Past medical history reviewed; labs reviewed. 

Physical exam including vision/hearing screening performed. 

Forms completed and returned to Human Resources. 

No limiting physical conditions were identified. 

i.The applicant’s final NCO Evaluation Report with a thru date of 12 August 2013shows he passed his final Army physical fitness test on 4 April 2013.  His rater marked him as “Fully Capable” going on to write: 

“o promote to Staff Sergeant ahead of peers 

osend to Senior Leader's Course when available

odedicated NCO; goes beyond normal duty requirements to ensure all missionsare accomplished

ocontinue to challenge this NCO with positions of increased responsibility”

i.His senior rater top-blocked him for overall potential.

j.There is no evidence the applicant had a permanent medical condition which wouldhave failed the medical retention standards of chapter 3, AR 40-501 prior to his voluntary separation.  Thus, there was no cause for referral to the Disability Evaluation System.  Furthermore, there is no evidence that a permanent medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his voluntary separation. 

k.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. 

l.It is the opinion of the ARBA medical advisor that a referral of the case to the DESis not warranted. 

BOARD DISCUSSION: 

The Board carefully considered the applicants request, supporting documents, evidence in the records, and regulatory guidance. The Board considered the applicant's statement, the medical records, and the review and conclusions of the medical reviewing official. Based upon a preponderance of the evidence, the Board concurred with the medical reviewer’s finding of insufficient evidence the contested medical conditions failed to meet retention standards during his period of service. Therefore, the Board determined referral to DES for consideration is not warranted. 

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. 



Microsoft Office Signature Line...
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 forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice. This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3-year statute of limitations if the ABCMR determines itwould be in the interest of justice to do so.

2.Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departmentswith authority to retire or discharge a member if they find the member unfit to performmilitary duties because of physical disability. The U.S. Army Physical Disability Agencyis responsible for administering the Army physical disability evaluation system andexecutes Secretary of the Army decision-making authority as directed by Congress inchapter 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 medicalretention 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: theMEB 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 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. 
 
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.  Department of Defense (DoD) Directive-Type Memorandum (DTM) 11-015 (Disability Evaluation System) explains the Integrated Disability Evaluation System (IDES). The version in effect at the time defined the IDES process and procedures. The guidelines within the DTM were incorporated in the DoD Manual Number 1332.18 (DES Manual: General Information and Legacy DES Time Standards).    
 
 a.  The IDES is the joint DoD-VA process by which DoD determines whether wounded, ill, or injured Service members are fit for continued military service and by which the DOD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability.  The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. 
 
 b.  Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 (Disability Evaluation System (DES)) and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances.  Service members whose cases were initiated under the legacy DES process will not enter the IDES. 
 
 c.  IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. 
 
 d.  Within 15 days of receiving the proposed disability ratings from the Disability Rating Activity Site (D-RAS), the PEB will apply the raring using the diagnostic code(s) provided by the D-RAS to the Service Member’s unfitting conditions and publish the disposition recommendation. For example, if the PEB identifies a condition to the  
D-RAS as “schizophreniform disorder”, but the D-RAS rates the condition as “psychotic disorder NOS (VASRD 9210), the PEB will apply the rating as “schizophophreniform disorder rated as psychotic disorder NOS (VASRD 9210). 
 
 e.  Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. 
 
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.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 
 
10.  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. 
 
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