IN THE CASE OF: BOARD DATE: 16 June 2023 DOCKET NUMBER: AR20220007274 APPLICANT REQUESTS: in effect, * an increased physical disability retirement rating * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * personal letter to the Board, 1 August 2022 * personal letter to the Board, 24 February 2023 * Department of Veteran Affairs (VA) summary of benefits letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) * medical record (1 page) * VA service connected disability letter FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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, in pertinent part, when he was medically retired from the Utah Army National Guard, the officer assigned to evaluate his disabilities, was not a doctor. He does not believe his evaluation conducted correctly due to a conflict of interest resulting in a substandard ratings for his disabilities. The VA rated him at 90 percent including 70 percent for posttraumatic stress disorder (PTSD). He indicates he should have received a rating from the Army for his back. a. In his initial letter to the Board, he states as a Chaplain’s assistant, he and the Chaplain visited remote locations every week. They were under attack much of the time. A friend died on patrol, and after the body was brought back, he had to sit with his body for about 5 hours. He experienced an incident when his roommate found him with his M16 in his mouth. He spent the rest of the day in the combat stress clinic and his weapon and shoelaces were taken. He eventually went back to duty. He had nightmares when he returned home. He avoids most social situations. His leaders wanted to kick him out and were upset when they couldn’t due to his medical situation. The officer assigned to evaluate him was friends with his leaders, and did not consider most of his conditions. He wasn’t a medical professional and didn’t have any business investigating. The VA gave him a rating of 90 percent. The applicant’s entire letter is available for the Board’s review. b. In his second letter to the Board, the applicant states a sergeant called out his medical condition in front of other Soldiers and this is a HIPAA violation. He was questioned in attempts to prove him incompetent and a liar. He was frustrated they didn’t even consider his PTSD. They didn’t consider the tinnitus which is extremely irritating, or the pain in his shoulder. He states after 5 years of going to drills injured, he received a phone call and was told not to come to drill as he was retired. He did not get a fair shake after 21 years in the same unit. He fails to understand how the VA can rate him at 90% (70% then) and the Army, who caused the problems rate him at 20%. The applicant’s entire letter is available for the Board’s review. 3. The applicant enlisted in the United States Army Reserve on 25 January 1992 for a period of 8 years. He was ordered to initial active duty for training (IADT) effective 6 May 1992. He completed his required training and assigned the military occupational specialty (MOS) 71M (chaplain assistant). He was honorably released from active duty on 10 September 1992. 4. The applicant enlisted in the Army National Guard of the United States and the State of Utah for a period of 7 years on 14 September 1993. 5. Orders 238-241, show the applicant was ordered to active duty for Operation Iraqi Freedom effective 10 September 2004. 6. The applicant was honorably released from active duty on 20 November 2005. His DD Form 214 showing service in Kuwait/Iraq from 28 November 2004 to 5 November 2005. 7. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 17 September 2010, shows the applicant was admitted to a civilian hospital as an outpatient for unspecified chest pain. On 17 September 2010, the applicant felt dizzy after marching in a parade. Afterward attended a high school football game and still felt dizzy and nauseated. He talked to the EMTs there and they sent him to the hospital. This injury was considered to have been incurred in the line of duty. 8. A memorandum, subjected: Notification of Separation Proceedings Under AR 135- 178, Chapter 9, dated 8 January 2011, shows the applicant’s commander initiated action to separate him for failure to attend MOS reclassification course withing 24 months. 9. The applicant received notification of the separation proceedings, and after consulting with counsel, acknowledged receipt. 10. A DA Form 2173, dated 26 January 2011, shows the applicant was admitted as an outpatient at Camp Williams, Iraq on 1 September 2005 at 0900 hours for PTSD from his deployment from 2004 to 2005. The medical opinion shows the applicant was not under the influence of alcohol or drugs. He was not mentally sound. His condition was deemed likely to result in a claim against the government and was incurred in the line of duty. 11. Orders 017-005, dated 17 January 2013, show the applicant was involuntarily transferred to the medical management activity, Draper, UT. 12. A DA Form 199 shows: a. An Informal PEB convened on 13 March 2014, wherein the applicant was found physically unfit with a recommended rating of 30 percent and that his disposition be permanent disability retirement. b. The applicant was found unfit for posttraumatic stress disorder. [The applicant] was deployed to Iraq 2004 - 2005. The behavioral health examiner attributed the condition to combat stressors (v1/3-yes). [The applicant] is competent to participate in board proceedings. Reasonable performance requires that [the applicant] perform all DA Form 3349, block 5 functional activities. [The applicant] is unfit because profile restrictions associated with this condition prevent [him] from being able to carry and fire weapon IAW DoDI 1332.38, E3.P3.2.1. c. The following medical conditions were determined not to be unfitting because the MEB determined that they met medical retention standards; they were not listed on the Physical Profile as limiting any of the [applicant’s] functional activities; they were not commented upon by the commander as hindering [his] performance of assigned duties; continued service did not put [his] health at risk from them; and the conditions individually or in combination with the [applicant]’s other conditions did not put an undue burden on the military to protect him in performance of his duties: * right trapezius strain * right shoulder acromioclavicular joint osteoarthritis * degenerative joint disease, cervical and lumbar spine * irritable bowel syndrome d. Additionally, the PEB determined the applicant’s degenerative joint disease, cervical and lumbar spine was a profiled condition but not unfitting because it did not render the [applicant] unable to reasonably perform the duties of his rank and MOS; did not represent a decided medical risk to the health of the [applicant], or to the welfare of other Soldiers were he to continue on active duty; the unit commander made no mention of this condition as limiting the [applicant]’s performance; and the condition did not impose unreasonable requirements on the military to maintain or protect the [applicant]. e. The PEB made the following administrative determinations: (1) The disability disposition was based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war (5 USC 8332, 3502, and 6303). (2) Evidence of record reflected the Soldier was not a member or obligated to become a member of an armed force or Reserve thereof, or the NOAA or the USPHS on 24 September 1975. (3) The disability did result from a combat-related injury under the provisions of 26 USC 104 or 10 USC 10216. f. The applicant concurred and waived a formal hearing of his case on 20 March 2014 and the proceedings were finalized on 3 April 2014. 13. The applicant was honorably retired from the Army National Guard of Utah on 29 April 2014 for placement on the permanent disability retired list. 14. Orders D 085-02 show the applicant was placed on the retired list effective 30 April 2014 with a 30 percent disability rating. 15. The applicant provided: a. A VA summary of benefits letter showing a combined rating of 90 percent effective 1 May 2022. b. A VA list of disability claims and ratings showing he is service connected for: * PTSD, 70 percent effective 24 April 2022 * cervical degenerative disc disease, 20 percent effective 23 July 2013 * right upper trapezius strain, 20 percent effective 23 July 2013 * lumbar degenerative joint disease, 20 percent effective 23 July 2013 * tension headaches, 30 percent effective 9 September 2009 * tinnitus, 10 percent effective 28 January 2007 * irritable bowel syndrome, 10 percent effective 28 January 2007 16. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 17. 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. 18. Title 38, U.S. 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. 19. 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. 20. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 21. MEDICAL REVIEW: a. 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: b. The applicant has applied to the ABCMR requesting an additional medical condition be determined unfitting for continued military service and a corresponding increase in his combined military disability rating. He states in part: “The officer that evaluated me had a conflict of interest and did not have the expertise to evaluate my medical issues. The VA has given me a 90% disability rating, 70% for PTSD. The officer who evaluated me told me that all of my issues where not valid issues and that they should not be considered. He said that "most people who hurt their backs hear a pop which is proceeded by intense pain." So therefor he proceeded that I didn't have a back issue. He said that I didn't complain about it in Iraq. When I did complain about it, but they gave me ibuprofen to ease the pain and told me to "man up". I had PTSD so bad in Iraq that I was confined to quarters for 36 hours and my weapon and shoelaces were taken away. I have a disability for PTSD 70%, Cervical degenerative disc Disease 20%, Right upper trapezius strain 20%, Lumbar degenerative Joint Disease 20%, Tension Headaches 30%, Tinnitus 10%, IBS {irritable bowel syndrome}10%, I have all of these disabilities yet the Army told me that I only get 20% disability. It is frustrating to me. If an actual doctor had evaluated me (in-Person) and told me that I didn't have these things, then I would not argue, but this person was not qualified to evaluate my medical issues.” c. The Record of Proceedings details the applicant’s service and the circumstances of the case. His National Guard Report of Separation and Record of Service (NGB Form 22) for the period of Service under consideration shows the former drilling Soldier entered the Army National Guard on 14 September 1993 and was honorably discharged from the Utah Army National Guard (UTARNG) on 29 April 2014 under provisions provided in paragraph 6-36s of NGR 600-200, Enlisted Personnel Management (31 July 2009): Placement on the permanent disability retired list. Orders Published by the United States Army Physical Disability Agency on 26 March 2014 show the applicant was permanently retired for physical disability effective 30 April 2014 with a combined military disability rating of 30%. d. A Soldier is referred to the IDES when they have one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldier’s referred medical conditions in section I the VA/DOD Joint Disability Evaluation Board Claim (VA Form 21-0819). The Soldier, with the assistance of the VA military service coordinator, lists all conditions they believe to be service-connected disabilities in block 8 of section II or a separate Statement in Support of Claim (VA form 21-4138). Soldiers then receive one set of VA C&P examinations covering all their referred and claimed conditions. These examinations, which are the examinations of record for the IDES, serve as the basis for both their military and VA disability processing. All conditions are then rated by the VA prior to the Soldier’s discharge. The physical evaluation board (PEB), after adjudicating the case sent them by the medical evaluation board (MEB), applies the applicable VA derived ratings to the Soldier’s unfitting condition(s), thereby determining their final combined rating and disposition. Upon discharge, the Veteran immediately begins receiving the full disability benefits to which they are entitled from both their Service and the VA. e. On 7 February 2013, the applicant was referred to the IDES for “PTSD”, “Low- Back Pain”, and “Neck Pain.” He claimed two additional conditions on his VA Form 21- 0819 – IBS and right upper trapezius strain. A medical evaluation board (MEB) determined his “PTSD” failed the medical retention standards of AR 40-501, Standards of Medical Fitness. They determined that four additional medical conditions met medical retention standards, including “Right trapezius strain,” “Right shoulder acromioclavicular joint arthritis,” “Degenerative joint disease, cervical and lumbar spine,” and “Irritable bowel syndrome.” On 10 October 2013, the applicant agreed with the Board’s findings and recommendation and declined an independent medical review. His case was then forwarded to a physical evaluation board (PEB) for adjudication. f. On 13 March 2014, the applicant’s informal PEB found his “Posttraumatic stress disorder” to be the sole unfitting medical condition for continued service. They determined the remaining four conditions/diagnoses (Dx) were not unfitting for continued service: “Right trapezius strain (MEB Dx 2); Right shoulder acromioclavicular joint osteoarthritis (MEB Dx 3); Degenerative joint disease, cervical and lumbar spine (MEB Dx 4); Irritable bowel syndrome (MEB Dx 5); are not unfitting because: The MEB determined that they meet medical retention standards; they are not listed on the Physical Profile as limiting any of the Soldier’s functional activities; they are not commented upon by the commander as hindering the Soldier’s performance of assigned duties; continued service does not put the Soldier’s health at risk from them; and the conditions individually or in combination with the Soldier’s other conditions does not put an undue burden on the military to protect the Soldier in performance of his duties. Degenerative joint disease, cervical and lumbar spine (MEB Dx 4); is a profiled condition but not unfitting because it does not render the Soldier unable to reasonably perform the duties of his rank and MOS; does not represent a decided medical risk to the health of the Soldier, or to the welfare of other Soldiers were he to continue on active duty; the unit commander makes no mention of this condition as limiting the Soldier’s performance; and the condition does not impose unreasonable requirements on the military to maintain or protect the Soldier.” g. His cervical and lumbar spine conditions are listed on his Physical Profile (DA form 3349) as non-duty limiting conditions, both having a serial of “2”. Table 7-1 of AR 40-501, Standards of Medical Fitness (4 August 2011) is the “Physical profile functional capacity guide.” From this guide, the profile serial of 2 for upper extremity or U2 (includes cervical spine) and for lower extremity or L2 (includes lumbar spine) are similar: U2: “Slightly limited mobility of joints, muscular weakness, or other musculoskeletal defects that do not prevent hand–to–hand fighting and do not disqualify for prolonged effort.” L2: “Slightly limited mobility of joints, muscular weakness, or other musculoskeletal defects that do not prevent moderate marching, climbing, timed walking, or prolonged effort.” h. For these slight limitations, the profile simply excused the applicant from the sit-up event and allowed him to perform an alternate aerobic event in lieu of the 2-mile run event for his Army Physical Fitness Test (APFT). i. The PEB applied the 30% disability rating supplied by the Veterans Benefits Administration and recommended the applicant be permanently retired for physical disability. On 20 March 2014, after being counseled on the informal PEB’s findings by his PEB Liaison Officer (PEBLO), the applicant concurred with the informal PEB’s findings, waived his right to a formal hearing, and declined to request a VA reconsideration of his PTSD disability rating. j. Review of his PEB case file in ePEB, the supporting documents, and his records in AHTLA found no material error, discrepancies, or omissions. k. There is no evidence the applicant had any additional duty incurred medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge. Thus, there was no cause for referral to the Disability Evaluation System. Furthermore, there is no evidence that any additional medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. l. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings. However, the DES only compensates an individual 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. m. It is the opinion of the Agency Medical Advisor that neither an increase in his military disability rating nor a referral of his case to the DES is warranted. 22. BEHAVIORAL HEALTH REVIEW: a. The applicant is applying to the ABCMR requesting an increase of his physical disability retirement rating. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the United States Army Reserve on 25 January 1992; 2) The applicant was ordered to active duty for Operation Iraqi Freedom from 28 November 2004-5 November 2005; 3) An Informal PEB convened on 13 March 2014, and the applicant was found physically unfit with a recommended rating of 30% for PTSD. His disposition was determined to be a permanent disability retirement. The applicant was placed on the retired list effective 30 April 2014. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. d. The applicant is requesting an increase to his physical disability retirement rating. He first started reporting symptoms of PTSD during his deployment to Iraq. A DA Form 2173, dated 26 January 2011, shows the applicant was admitted as an outpatient at Camp Williams, Iraq on 1 September 2005 for PTSD. He was seen later at the VA on 29 December 2005, and he was granted service-connected disability for PTSD in 2007. The applicant has continued in behavioral health care at the VA for PTSD. A PEB was conducted on 13 March 2014, and the applicant was found to be physically unfit due to PTSD with a recommended rating of 30%. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence the applicant was improperly evaluated for his mental health condition prior to his discharge. He was previously evaluated, and he was found to have a qualifying mental health condition that failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness. Thus, there is no cause for an additional referral to the Disability Evaluation System for a mental health condition at this time. Kurta Questions: 1. Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he warrants an increase in his disability rating. 2. Did the condition exist or experience occur during military service? Yes, there is sufficient evidence the applicant has been diagnosed and treated for service- connected PTSD. 3. Does the condition experience actually excuse or mitigate the discharge? No, there is insufficient evidence the applicant was improperly evaluated for his mental health condition prior to his discharge. He was previously evaluated, and he was found to have a qualifying mental health condition that failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge. Thus, there is no cause for an additional referral to the Disability Evaluation System for a mental health condition at this time. 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 applicant’s contentions, the military record, two advisory opinions, and regulatory guidance were carefully considered. The Board also considered the findings of the PEB. The Board concurred with the advisory officials finding 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 upon a preponderance of the evidence, the Board determined the final decision made by the PEB was not by error nor unjust and an increase in rating is not warranted. 2. The Board agreed that the VA provides post-service support and benefits for service connected medical conditions. The VA operates under different laws and regulations than the Department of Defense (DOD). In essence, the VA will compensate for all service connected disabilities. Variance in ratings does not indicate an error on the part of either entity. 3. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: xx: 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, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. 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. 4. 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. 5. 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. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). 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. 6. 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). 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. 7. Section 1556 of Title 10, U.S. 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. 8. 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. 9. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007274 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1