IN THE CASE OF: BOARD DATE: 29 September 2022 DOCKET NUMBER: AR20220002407 APPLICANT REQUESTS: reconsideration of his prior request for physical disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * U.S. Total Army Personnel Command Orders D228-3, 9 November 1995 * self-authored letter to Congressional liaison, 16 November 2015 * email correspondence with a Veterans Service Officer (VSO), 12 December 2017 * partial excerpt titled “The Legal Rights of Persons with Epilepsy,” of unknown source * self-authored letter to Member of Congress, 12 March 2021 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC96-10895 on 1 July 1998. 2. The applicant states: a. His Physical Evaluation Board (PEB) was not done properly and Department of the Army regulations and laws were not considered. He was not represented by a Judge Advocate General’s Corps (JAG) attorney. The PEB and his chain of command did not consider his over 18 years of time in service and offer him limited duty status to take advantage of the benefits of a medical retirement. b. On 28 October 2021, a representative from the Defense Finance and Accounting Service (DFAS) advised him that his orders from the Army show he was discharged without severance pay and that he may petition the ABCMR on a DD Form 149 for military retirement pay or severance pay. DFAS does not have the authority to change his military records without authorization from the ABCMR. If the ABCMR finds in his favor for military retired pay or severance pay, they will forward their decision and orders to DFAS to issue him the approved pay. 3. The applicant enlisted in the Regular Army on 16 August 1977. He was honorably released from active duty on 19 July 1985, due to expiration term of service, after 7 years, 11 months and 4 days net active service, and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). 4. After two honorable periods of inactive service in the USAR Ready Reserve from July 1985 through July 1988 and again from July 1988 through April 1991, the applicant enlisted in the USAR in a Troop Program Unit (TPU) on 1 June 1992. 5. A DA Form 2173 (Statement of Medical Examination and Duty Status) shows the following: a. On 18 June 1994, while on active duty for training as a USAR member from 12 – 25 June 1994, the applicant was admitted to the Lyster U.S. Army Community Hospital, Fort Rucker, AL, via ambulance with a complaint of seizures. He stated he had a seizure earlier in the same day and was admitted for continued treatment. b. The medical opinion shows this was the exacerbation of a pre-existing condition. c. On 26 July 1994,the applicant’s unit commander signed the form, indicating a formal line of duty (LOD) investigation was not required and the injury was considered to have been incurred in the LOD. 6. After referral from Maxwell Air Force Base, a neurological evaluation was done at the Alabama Neurological Clinic, on 27 July 1994, showing the following: a. The applicant was knocked unconscious two times in 1992. The first occurred when he fell at the workplace. He was not hospitalized and 3 weeks later he was hit on the back of the head during a robbery attempt and was subsequently sent to the hospital. He was knocked unconscious for approximately 2 minutes. During that period of time, he was drinking a great deal. He had a seizure in 1993, then had another seizure in February 1994, and another one in June 1994. These usually occur in his sleep and he is reported to have tonic/clonic activity and has tongue biting and incontinence. b. The impression shows seizure disorder, etiology undetermined, possible post- traumatic. 7. An Alabama Neurological “Clinic Electroencephalography Report, likewise, dated 27 July 1994, shows the applicant underwent an EEG on the date of the form and a normal EEG was recorded in the awake, drowsy, and sleep states. A clinical comment shows a normal interictal EEG does not exclude a seizure disorder. 8. An Optional Form 275 ( Medical Record Report), dated 20 September 1994, shows the following: a. The applicant’s chief complaint was seizure disorder. In 1992, while a member of the Reserve, he experienced mild head trauma on two occasions. By his report, there was a loss of consciousness of unknown duration with each event. b. Since 1993, the applicant had episodes of loss of consciousness associated with generalized tonic/clonic seizure activity, tongue biting, and incontinence, which usually occur nocturnally or following periods of stress or sleep deprivation. The applicant’s second and third documented events occurred on 5 February 1994 and 18 June 1994, while engaged in active duty training and a black out spell was reported on 27 July 1994. c. CT scan of the head in the past was normal, per the applicant’s report. An EEG performed in July 1994 showed a normal EEG in the awake, drowsy, and sleep states. d. The impression was complex partial seizure disorder with secondary generalization. The etiology of the seizures are unclear; they may be related to past alcohol use and mild head trauma and he was undergoing adjustments in his medications to determine the optimal dosage and seizure control. e. The recommendations show a brain Magnetic Resonance Imaging (MRI) was needed to complete the applicant’s diagnostic work-up. His prognosis for recovery and adequate seizure control was fair. He should be maximized on medical therapy in an effort to obtain seizure control. If control is obtained, 2 years of seizure-free status should be achieved prior to reassessment and consideration of anti-convulsant withdrawal. The applicant should be restricted from driving (until he has been seizure- free for 1 year), handling of firearms or explosives, working at heights or near heavy machinery. The applicant is being presented to the medical board for determination of world-wide qualifications. 9. An Air Force Form 618 (Medical Board Report) shows the following: a. A Medical Evaluation Board (MEB) convened on 17 October 1994 at Maxwell Air Force Base (AFB) to consider the applicant’s diagnosis of complex partial seizure disorder. It was determined the condition existed prior to service (EPTS) and was permanently aggravated by service. b. The recommendation of the MEB was referral to the informal PEB. c. On 24 October 1994, the applicant signed the form indicating he had been informed of the findings and recommendations of the MEB and did not submit a letter of exception. 10. A Standard Form 93 (Report of Medical History), dated 24 October 1994, shows the applicant underwent medical examination on the date of the form for the purpose of an MEB. He indicated on the form that the was taking Dilantin and among the conditions he listed were dizziness or fainting spells, epilepsy or fits, and periods of unconsciousness. He provided that he had a seizure disorder while on active Reserve duty and was hospitalized at Fort Rucker, AL, at Lyster Hospital. 11. On 16 November 1994, the applicant indicated in a signed memorandum addressed to the U.S. Army PEB President that did not desire to continue on active duty. 12. A DA Form 3349 (Physical Profile) shows on 17 November 1994, the applicant was given a permanent physical profile rating of “3” in the factor P (Physical capacity or stamina) due to seizure disorder, based on a review of the MEB completed at the U.S. Air Force Hospital, Maxwell AFB, AL, dated 17 October 1994. The physical profile limited the application to no driving, handling of firearms or explosives, no working at heights or near moving machinery 13. A Headquarters Company, 926th Engineer Group memorandum, dated 21 November 1994, provided the commander’s performance and duty assessment of the applicant, stating the following: a. The applicant is physically incapable of reasonably performing his duties in his Military Occupational Specialty (MOS) due to his seizures. His seizures prevent him from actively supervising section Soldiers in the establishing of communication. Any duty assigned to the applicant could impair his safety and the safety of others should he experience another seizure. His condition further precludes his performing critical field duties, such as digging in equipment, building field fortifications, carrying heavy tentage and camouflage nets. b. As a team chief, the applicant is routinely required to assist in the erecting of tents, camouflage nets and antennas. In the execution of these duties, he is frequently required to perform them during night movements. His duties also require mounting and dismounting of vehicles under a variety of tactical conditions. He is currently incapable of performing these requirements, even vehicle maintenance, due to his condition. He is a good Soldier, but his physical condition creates a burden for others in his commo section and adversely impacts on readiness. His seizure during Annual Training left his section short-handed during the field training exercise. c. This Headquarters is considered a rapid response, Contingency Force Pool Unit. They routinely conduct deployment exercises. If deployed, the unit would have to leave the applicant behind. Simply stated, he is totally incapable of performing his MOS duties in a combat environment without the potential for injury to himself and his fellow Soldiers. It was highly recommended the applicant be considered unfit to perform his duties in his MOS and continued assignment to any position in the active USAR. 14. A DA Form 5889-R (PEB Referral Transmittal Document), dated 29 November 1994, shows the applicant was referred to the PEB. Among the included documents with the PEB referral was a memorandum for record from the PEBLO stating the applicant was a Reserve Component Soldier not on active duty at the time and that he was not eligible for Transition Assistance Benefits. 15. A DA Form 199 (PEB Proceedings) shows the following: a. A PEB convened on 8 December 1994 at Fort Sam Houston, TX while the applicant was a USAR TPU drilling member. b. The PEB found the applicant’s disability of complex partial seizure disorder physically unfitting and non-compensable and recommended his disposition be separation from the service without disability benefits. c. The applicant suffered mild head trauma twice in 1992 and had his first seizure in 1993. None of these events occurred while he was performing military duties and his condition is not the proximate result of USAR duty. d. Based on a review of the objective medical evidence of record, the PEB found the applicant’s medical and physical impairment prevented reasonable performance of duties required by his grade and military specialty. e. There is compelling evidence to support a finding that the current condition was EPTS and was not permanently aggravated by the applicant’s service. 16. A Headquarters, U.S. Army Aeromedical Center PEBLO memorandum, dated 13 December 1994, attached for the applicant’s review the findings and recommendations of the PEB in the DA Form 199 and informed him that the PEB recommended his separation from the service without disability benefits. The applicant was advised to complete and return his response to the PEB findings and election. 17. On 16 December 1994, the applicant indicated in his response to the PEB findings of separation from the service without disability benefits that having been advised of the findings and recommendations of the PEB and having received a full explanation of the results of the findings and recommendations and his legal rights pertaining thereto that he did not concur, demanded a formal hearing with personal appearance, and requested representation by regularly appointed counsel. 18. A U.S. Army PEB memorandum, dated 22 December 1994, shows the following: a. The applicant was notified he was scheduled to appear for a formal hearing before the PEB at Fort Sam Houston, TX on 2 February 1995. b. He was advised he would have an opportunity to present his case orally or in writing and to examine and cross-examine any witnesses. c. He was advised he may choose to be represented by regularly appointed military counsel or by counsel of his choice at not expense to the Government; however, he was responsible for making other arrangements if he did not wish to be represented by regularly appointed military counsel. d. He was advised of the numbers to call if he had administrative questions and if he had legal questions concerning his case, he could contact legal personnel at the addresses or phone numbers provided. 19. The applicant’s records contain a Request for Temporary Duty (TDY) Orders, dated 28 December 1994 to Fort Sam Houston, TX from 1 February 1995 through 3 February 1995 for the purpose of PEB participation as well as an itinerary will flight information 20. A U.S. Army PEB memorandum, dated 8 February 1995, addressed to the Lyster Army Hospital, Fort Rucker, AL advised the applicant’s MEB proceedings were being returned without action as the MEB recommended that a brain MRI be obtained to complete the applicant’s diagnostic work-up. This was evidently obtained after the dictation of the MEB, but the applicant was not advised of the results. An addendum to the MEB was to be prepared containing the results of the MRI and upon completion, the case was to be returned to the PEB for additional processing. 21. An Addendum to the MEB Summary, dated 1 March 1995, shows the following: a. Refer to the MEB Summary dictated on 20 September 1994. In that dictation, there had been a recommendation for the applicant to undergo a cranial MRI to complete his diagnostic work-up. The applicant underwent the MRI on 20 September 1994. A 0.5 Tesla mobile MRI was performed with and without gadolinium contrast. There were no abnormalities noted on the exam and it was entirely within normal limits. b. The impression was of complex partial seizure disorder with secondary generalization. c. The recommendations remained unchanged from the previous MEB Summary dictation. 22. The applicant’s records contain a U.S. Army PEB memorandum, dated 1 March 1995, which contains a list of the personnel designated as members of the PEB, Fort Sam Houston, TX, for the purpose of adjudicating referred PEB cases. Included in the listed personnel are Captain (CPT) JAG (Legal Counsel) and CPT JAG (Legal Counsel). 23. A 13 March 1995 memorandum shows the Addendum to the MEB Summary pertaining to the applicant, was completed at the USAF Hospital, Maxwell AFB, AL, was reviewed, and was approved for forwarding to the PEB. An additional memorandum, dated 14 March 1995, shows the applicant was provided with a copy of the MEB Addendum. 24. A second DA Form 199 shows the following: a. A PEB was convened on 23 March 1995 at Fort Sam Houston, TX, to reconsider the applicant’s diagnosis of complex partial seizure disorder with secondary generalization, EPTS, not service aggravated. b. The applicant was found unfit to perform his full duty in his grade and MOS due to seizure disorder. This case was informally reconsidered based on the Medical Board Addendum, dated 1 March 1995. c. Based on a review of the objective medical evidence of record, the PEB found the applicant’s medical and physical impairment prevented reasonable performance of duties required by his grade and MOS. d. The PEB determined there was compelling evidence to support a finding that the current condition EPTS and was not permanently aggravated by such service. e. The PEB found the applicant physically unfit and recommended a non- compensable rating and that his disposition be separation from the service without disability benefits. 25. On 24 April 1995, the applicant indicated he wished to concur with the 23 March 1995 informal PEB findings of separation from the service without disability benefits and requested the formal hearing scheduled for 9 May 1995 be cancelled. 26. U.S. Total Army Personnel Command Orders D228-3, dated 9 November 1995, discharged the applicant from the USAR effective 30 November 1995, under the provisions of Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). 27. A U.S. Total Army Personnel Command memorandum, dated 9 November 1995, provided the applicant’s unit commander with a copy of the above-referenced Orders D228-3, dated 9 November 1995, authorizing the applicant’s physical disability discharge without severance pay. 28. The applicant’s DA Form 5016 (Chronological Statement of Retirement Points) shows that at the time of the applicant’s USAR discharge on 9 November 1995, he had completed only 3 years of USAR service qualifying for retirement. Although he had served in some capacity in the USAR since June 1985 (in the Ready Reserve or a TPU), there were only 3 years of service wherein he had earned a total of 50 or more points creditable per year, those years being from 7 June 1992 through 6 June 1993, 7 June 1993 through 6 June 1994, and 7 June 1994 through 6 June 1995. The applicant’s prior honorable active service of 7 years, 11 months, and 4 days combined with his 3 years of honorable USAR qualifying service for retirement, amount to less than 15 years of qualifying service toward retirement. 29. The applicant previously applied to the Board requesting physical disability retirement. After considering all the evidence presented and applicable laws and regulations, the Board denied his request on 1 July 1998, determining there was not sufficient evidence to demonstrate the existence of a probable error or injustice. 30. In a 16 November 2015 letter to his Congressional Liaison, the applicant stated the following he was medically discharged from the U.S. Army for a service-connected disability. Uneducated about what to do and what he was entitled to, the military quickly discharged him by giving him an improper, unprofessional, and unfavorable psychiatric diagnosis and he was not properly medically boarded. He had over 18.5 years of military service, but they would not assign him light duty, give him a medical retirement, and he did not receive severance pay. The Department of Veterans Affairs (VA) cannot assist him in this effort, but has born the greatest burden in this process by validating his epilepsy is due to military service and has approved his disability as 100 percent service-connected. As he is rated over 30 percent for his service-connected disability, he is entitled to disability retirement and severance pay. 31. Email correspondence between the applicant and an assisting VSO, dated 12 December 2017, shows the VSO was of the opinion that the applicant’s discharge was unjust, his PEB not conducted properly, and that he should have received a medical retirement. The VSO asked the applicant to provide him with proof of his honorable discharge, Leave and Earnings Statements (LESs) showing he met the time in service requirement for retirement, and evidence he was not processed for a PEB. He additionally states the VA determined the applicant’s disability to have been service- connected. 32. In a letter to his Member of Congress, dated 12 March 2021, the applicant states his the following: a. His dates of service are as follows: * Regular Army from 6 June 1977 to 19 July 1985 * Individual Ready Reserve from 1985 to 1992 * USAR from 1992 to 1996 b. He developed epilepsy after over 18 years of service in the military and was quickly given a medical discharge without being properly boarded. He was unaware that he could have contested this and asked for a medical retirement since he had over 15 years of active service and was made aware of this by a VSO. c. He is asking for assistance in obtaining the military retirement he was denied, either by design or by the ignorance of his command. Prior to his discharge, the Army said his epilepsy was not service-connected, but 1 year later the Army reversed that decision. 33. 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. 34. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 35. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 36. 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 is again applying to the ABCMR requesting his seizure disorder be declared to have been incurred in the line of duty and a subsequent permanent retirement for physical disability. b. The Record of Proceedings and his previous ABCMR denials detail the applicant’s military service and the circumstances of the case. Orders published on 9 November 1995 by the U.S. Total Army Personnel Command show the former USAR Soldier was to be discharged on 30 November 1995 under provisions in AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). c. This request was previously denied in full on 1 July 1998 (AC96-10895). d. Review of the case from the prior ROP: (1) He enlisted in the Regular Army on 16 August 1977, was awarded the military occupational specialty of tactical wire operator and was promoted to pay grade E-5. He served continuously and was honorably released from active duty on 19 July 1985 at the expiration of his term of service. (2) He remained in the control group but became active in the reserves, performing several short periods of active duty yearly. He joined a USAR unit on 1 June 1992. (3) On 18 June 1994, while on annual training, the applicant was hospitalized after experiencing a seizure. (4) On 28 July 1994 the applicant was given a neurological evaluation by a civilian physician. At that time the applicant reported that he had been knocked unconscious two times in 1992. The first occurred when he fell at work. The second was three weeks later when he was hit in the back of the head during a robbery attempt. He was hospitalized after that episode. The applicant reported that he was drinking alcoholic beverages heavily at that time, but had since quit drinking. The applicant reported having seizures in 1993, February 1994 and June 1994. e. Review of the civilian neurological evaluation and the medical evaluation board narrative summary confirm the medical history as noted above. f. A statement of Medical Examination and Duty Status (DA Form 2173) shows the applicant’s 18 June 1994 seizure occurred during his two weeks of annual training at Fort Rucker, Alabama. It states this was an exacerbation of a preexisting condition. The 1st Lieutenant completing the DA 2173 erred when he noted the applicant’s seizure disorder as having been incurred in the line of duty. g. Paragraph 39-2c(8) of AR 600-8-1, Army Casualty and Memorial Affairs and Line of Duty Investigations (18 September 1986), states a formal line of duty investigation must be conducted “(8) When a USAR or ARNG member serving on an active-duty tour of 30 days or less is disabled due to disease.” Review of the applicant’s Chronological Statement Of Retirement Points (DA Form 5016) show the applicant was a drilling member for the duration of his service in the USAR. h. The onset of the applicant’s seizure disorder was in 1993 and so existed prior to service. Paragraphs 41-8e(1) of AR 600-8-1 states: “(1) The term "EPTS" is added to a medical diagnosis. It shows that there is substantial evidence that the disease or injury or underlying condition, existed before service or it happened between periods of active service. Included in this category are chronic diseases with an incubation period that clearly precludes a finding that it started during short tours of authorized training or duty.” i. On 17 October 1994, a medical evaluation board (MEB) determined the applicant to have “Complex partial seizure disorder” which had existed prior to service with an approximate date of onset in 1993. They annotated the condition to have been permanently aggravated by service without evidence of permanent service aggravation or the mandated formal line of duty investigation. The MEB narrative summary notes the onset of the seizure disorder in 1993 yet notes no permanent service aggravation: “In 1992, he had a history of mild head trauma on two occasions. By the member’s report, there was loss of consciousness of unknown duration with each event. Since 1993 he has had episodes of loss of consciousness associated with generalized tonic/clonic seizure activity, tongue biting and incontinence. These usually occur nocturnally or following periods of stress or sleep deprivation. The duration of event during each episode is unknown. The member was unable to describe his actions during the post ictal state. The member's second and third documented events occurred on 5 Feb 94 and 18 Jun 94 respectively, while engaged in active-duty training.” j. The applicant was placed on a duty limiting permanent profile for “Seizure Disorder” on 17 November 1994 following the completion of his MEB and his case was forwarded to a physical evaluation board (PEB) for adjudication. k. On 23 March 1995, the PEB determined the applicant’s “Complex Partial Seizure Disorder With Secondary Generalization. EPTS, Not Service Aggravated” was his sole unfitting medical condition for continued service, and that because it had existed prior to service, was non-compensable: “There is compelling evidence to support a finding that the current condition existed prior to service (EPTS) and was not permanently aggravated by such service.” l. The PEB recommended the applicant be separated from the service without disability benefits. On 24 April 1995, after being counseled by his PEB liaison officer (PEBLO), the applicant concurred with the PEB’s findings and recommendation. m. It is the opinion of the Agency Medical Advisor the applicant’s seizure disorder was neither incurred while in a qualified duty status or permanently service aggravated. Thus, this condition is non-compensable, and referral of his case to the DES or the granting of a permanent disability retirement are not warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice warranting a change to the applicant’s narrative reason for separation. 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, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (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. 2. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. 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. 3. Army Regulation 40-501 provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by an MEB and will be referred to a PEB as defined in Army Regulation 635–40 with the following caveats: a. U.S. Army Reserve (USAR) or Army National Guard (ARNG) Soldiers not on active duty, whose medical condition was not incurred or aggravated during an active duty period, will be processed in accordance with chapter 9 and chapter 10 of this regulation. b. Normally, Reserve Component Soldiers who do not meet the fitness standards set by chapter 3 will be transferred to the Retired Reserve per Army Regulation 140–10 or discharged from the Reserve Component per Army Regulation 135–175 (Separation of Officers), Army Regulation 135–178 (ARNG and Reserve Enlisted Administrative Separations), or other applicable Reserve Component regulation. They will be transferred to the Retired Reserve only if eligible and if they apply for it. d. Reserve Component Soldiers who do not meet medical retention standards may request continuance in active USAR status. In such cases, a medical impairment incurred in either military or civilian status will be acceptable; it need not have been incurred only in the line of duty. Reserve Component Soldiers with non-duty related medical conditions who are pending separation for not meeting the medical retention standards of chapter 3 may request referral to a PEB for a determination of fitness in accordance with paragraph 9–12. 4. Title 10 USC, section 12731b (Special rule for members with physical disabilities not incurred in the line of duty), enacted 23 October 1992, provides in pertinent part that in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes as of 1 October 1991. This special provision of the law is applicable only to members who are medically disqualified for continued service in an RC. 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. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220002407 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1