IN THE CASE OF: BOARD DATE: 21 June 2023 DOCKET NUMBER: AR20220010836 APPLICANT REQUESTS: * in effect, transfer to the Retired Reserve with entitlement to apply for retirement benefits at age 60, in lieu of physical disability separation with severance pay and/or * in effect, an increase in physical disability rating to at least 50 percent through the inclusion of additional unfitting conditions APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * three DD Forms 214 (Certificate of Release or Discharge from Active Duty) * two National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service) * DA Form 3947 (Medical Evaluation Board (MEB) Proceedings), 25 October 2005 * 851st Area Support Group Detachment 3 memorandum, 10 January 2006 * Army Review Boards Agency (ARBA) memorandum, 9 February 2006 * U.S. Army Physical Disability Agency (USAPDA) memorandum, 17 February 2006 * DA Form 5892-R (Physical Evaluation Board (PEB) Liaison Officer(PEBLO) Estimated Disability Compensation Worksheet, undated * VA Rating Decision, 27 February 2007 * Disabled American Veterans letter, 19 February 2009 * six VA letters, dated between 5 June 2007 and 18 September 2017 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: a. According to the National Defense Authorization Act of 2008, Public Law 110- 181, changes were made to how the Department of Defense (DOD) rates certain medical conditions, which differ from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD) ratings to be applied. Additionally, the Secretary of Defense directed that the Physical Disability Board of Review (PDBR) and the ABCMR will apply VASRD section 4.129 to unfitting PTSD conditions for applicants discharged at least in part to PTSD on or after 11 September 2001. He was to be placed on the Temporary Disability Retired List (TDRL) and rated at 50 percent for 6 months and then reevaluated for his disabilities. Neither of these actions transpired. b. He is requesting correction to his records due to the fact that upon his discharge he was a Grey Area Retiree. He reached the age of 60 as of 23 June 2022, and submitted his retirement packet to the U.S. Army Human Resources Command (AHRC), as directed, 9 months prior to his 60th birthday. In April 2021, he was informed by the Defense Finance and Accounting Service (DFAS) that he is eligible to receive retirement, but a percentage will be deducted to pay back a portion of his disability severance pay. c. He contacted AHRC in July 2002 and was informed that his service records were “in the system” and that everything looked good to process. He subsequently received a letter from AHRC on 18 July 2022, informing him that he is not eligible to receive his Grey Area Retirement. In August 2022, he was informed by AHRC he needed to send an application to the ABCMR for a records correction, so AHRC could move forward with his retirement packet and send it to DFAS for processing. 3. An NGB Form 22 shows the applicant enlisted in the Army National Guard (ARNG) on 16 October 1981. 4. Service records, including a DD Form 214 and an NGB Form 23B (ARNG Retirement Points History Statement), show the applicant entered ARNG active duty under Title 32 for the State of Colorado in an Active Guard Reserve (AGR) capacity on 23 April 1991 was honorably released from active duty and the AGR and returned to his ARNG unit on 12 December 2003, due to being ordered to active duty in support of Operation Iraqi Freedom under Title 10. He was released from active duty in the rank/grade of sergeant first class (SFC)/E-7 and credited with 12 years, 7 months, and 20 days of net active service this period. 5. Within the period of service covered by the above-reference DD Form 214, the applicant received a Notification of Eligibility for Retired Pay at Age 60, dated 8 November 2001, advising him he completed the required years of service and would be eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10, U.S. Code, chapter 1223.. 6. A second DD Form 214 shows the applicant was ordered to active duty in support of Operation Iraqi Freedom on 13 December 2003 and served in Kuwait and Iraq from 12 March 2004 through 3 August 2004. 7. Records indicate the applicant was demoted in rank/grade from SFC/E-7 to staff sergeant (SSG)/E-6 effective 17 June 2004. 8. A DA Form 3947 shows the following: a. An MEB convened on 25 October 2005, where the following conditions were determined to cause the applicant to fall below retention standards of Army Regulation 40-501 (Standards of Medical Fitness): * chronic neck pain with cervical degenerative disk disease and disc protrusion and paresthesia (diagnosis (Dx) 1) * chronic headaches (migraine variant with triggering from his cervical degenerative disk disease or cervicogenic in nature (Dx 2) b. The following additional diagnoses did not cause the applicant to fall below the retention standards of Army Regulation 40-501: * PTSD (Dx 3) * dyslipidemia (Dx 4) * intermittent lower back pain (Dx 5) 9. A DA Form 199 (PEB Proceedings) shows the following: a. An informal PEB convened on 7 December 2005, where the applicant was found physically unfit with a recommended combined rating of 10 percent and that his disposition be separation with severance pay. b. The applicant was found unfit for the following conditions because his functional limitations in maintaining the appropriate level of vigorous activity caused by his physical impairments made him medically unfit to perform the duties required of a Soldier of his rank and MOS: * cervical degenerative disk disease, greatest at C4-C6 with uncovertebral hypertrophy, foraminal stenosis, left upper extremity radiculopathy (mild), MEB Dx 1, 10 percent * frequent headaches thought to be the result of cervicalgia, mixed type, primarily tension, with some symptoms suggestive of a migraine variant, with some episodes requiring rest for recovering, but not meeting the definition of prostrating, MEB Dx 2, 0 percent c. The conditions listed as MEB Dx 3, 4, and 5 were considered by the PEB and found to be not unfitting and therefore not ratable. d. The form contains the following statement: “You have been awarded a disability rating of less than 30 percent and have at least 20 qualifying years for Reserve retirement. Under the provisions of chapter 1223, Title 10, U.S.C., you may have the option of accepting disability severance pay and forfeiting your Reserve retirement or you can choose to be placed in an inactive Reserve status and receive Reserve retired pay at the age of 60 (computed in accordance with chapter 71, Title 10, U.S. C.) by forfeiting your disability severance pay. If you elect transfer to the Inactive Reserve for the purpose of receiving Reserve retired pay at age 60, no disability compensation will be computed. Chapter 61, Title 10, U.S. C. 1209 specifies that you may not receive both disability benefits and retired pay for non-regular service.” e. On 19 December 2005, the applicant signed the form indicating he did not concur with the informal PEB findings and recommendations and demanded a formal hearing with personal appearance. He indicated did not attach a statement identifying his issues of disagreement with the informal PEB and he did request regularly appointed counsel to represent him. 10. An 851st Area Support Group Detachment 3 memorandum, dated 10 January 2006 provided a Commander’s Performance update for the PEB pertaining to the applicant, showing the following: a. In addition to the applicant’s cervical degenerative disk disease, lower back pain resulting from a bulging disk, carpal tunnel syndrome, and tendonitis in his left wrist and elbow, PTSD, depression and anxiety, the applicant frequently suffered from debilitating headaches. His commander observed the applicant with severe headaches after a frustrating experience so sever he has trouble accomplishing tasks. The headaches appear to be brought on by stress related to his PTSD, back problems, and family stress issues. b. The applicant cannot perform the duties of his Military Occupational Specialty (MOS) due to his headaches and he recommended the applicant being found unfit for duty due to concerns for his safety and the safety of others. 11. A second DA Form 199 shows the following: a. A formal PEB, convened on 11 January 2006 where the applicant was found physically unfit with a recommended combined rating of 20 percent and that his disposition be separation with severance pay. b. The applicant was found unfit for the following conditions because his functional limitations in maintaining the appropriate level of vigorous activity caused by his physical impairments made him medically unfit to perform the duties required of a Soldier of his rank and MOS: * cervical degenerative disk disease, greatest at C4-C6 with uncovertebral hypertrophy, foraminal stenosis, left upper extremity radiculopathy (mild), MEB Dx 1, 10 percent * migraine headaches with onset in 2004; imaging and neurological exam normal, frequency of headaches is about twice weekly and usually medication and modified activity help to abort the headache, but an occasional headache requires complete convalescence for up to 5 hours; MEB Dx 2, 10 percent c. The conditions listed as MEB Dx 3, 4, and 5 were considered by the PEB and found to be not unfitting and therefore not ratable. d. The form contains the following statement: “You have been awarded a disability rating of less than 30 percent and have at least 20 qualifying years for Reserve retirement. Under the provisions of chapter 1223, Title 10, U.S.C., you may have the option of accepting disability severance pay and forfeiting your Reserve retirement or you can choose to be placed in an inactive Reserve status and receive Reserve retired pay at the age of 60 (computed in accordance with chapter 71, Title 10, U.S. C.) by forfeiting your disability severance pay. If you elect transfer to the Inactive Reserve for the purpose of receiving Reserve retired pay at age 60, no disability compensation will be computed. Chapter 61, Title 10, U.S. C. 1209 specifies that you may not receive both disability benefits and retired pay for non-regular service.” e. On 18 January 2006, the applicant signed the form indicating he concurred with the findings and recommendation of the formal PEB. 12. Despite the applicant’s contention, there is no evidence of record showing he was to be placed on the TDRL for a period of 6 months with a rating of 50 percent for additional unfitting conditions, to include PTSD. 13. A memorandum to the Commander U.S. Army Physical Disability Agency (USAPDA), shows the applicant signed the document on 18 January 2006, indicating the following: a. He elected to be discharged with entitlement to receive disability severance pay, pursuant to Title 10, U.S. Code, section 1212. b. He did not elect to be transferred to the Retired Reserve pursuant to Title 10, U.S. Code, section 1209, with entitlement to apply for retirement benefits upon reaching age 60. c. He understood that this election is final and conclusive for all purposes and may not be changed. 14. A partial, undated DA Form 5892-R shows the applicant’s disposition was separation with severance pay (SWSP) and that his estimated disability severance pay was $92,174.44 (estimated and taxable). Item 7 (Estimated Retired Pay (Permanent Disability Retired List (PDRL) or TDRL) is diagonally crossed through and not filled out. 15. An Army Review Boards Agency (ARBA) memorandum, dated 9 February 2006, shows on 8 February 2006, the Army Grade determination Review Board convened to consider the applicant’s case and after a thorough review of his Official Military Personnel File (OMPF), determined the highest rank/grade in which he served satisfactorily for the purpose of disability retirement or separation is SFC/E-7. 16. A USAPDA memorandum, dated 17 February 2006, advised the applicant of the following: a. His PEB Proceedings have been corrected as reflected on the attached DA Form 18 9Revised PEB Proceedings). b. ARBA determined the highest rank/grade in which he served satisfactorily for the purpose of computation of disability retirement or separation pay is SFC/E-7. 17. A DA Form 18, dated 17 February 2006, shows the following: a. The applicant’s PEB Proceedings were changed to include the following statement: “This DA Form 18 supersedes DA From 199 dated 11 January 2006 and the following information is added: ARBA has determined the highest grade in which you served satisfactorily for the purpose of disability retirement or separation pay is SFC/E-7.” b. The applicant’s conditions found unfitting and their disability rating was not altered. c. This form also contains the following statement, included in all the applicant’s preceding PEB Proceedings: “You have been awarded a disability rating of less than 30 percent and have at least 20 qualifying years for Reserve retirement. Under the provisions of chapter 1223, Title 10, U.S.C., you may have the option of accepting disability severance pay and forfeiting your Reserve retirement or you can choose to be placed in an inactive Reserve status and receive Reserve retired pay at the age of 60 (computed in accordance with chapter 71, Title 10, U.S. C.) by forfeiting your disability severance pay. If you elect transfer to the Inactive Reserve for the purpose of receiving Reserve retired pay at age 60, no disability compensation will be computed. Chapter 61, Title 10, U.S. C. 1209 specifies that you may not receive both disability benefits and retired pay for non-regular service.” 18. Installation Management Agency Orders 054-0006, dated 23 February 2006 honorably discharged the applicant from the ARNG effective 14 March 2006 due to disability with severance pay in the pay grade E-7, with 20 percent disability rating. 19. The applicant’s DD Form 214 covering the period of activated service in support of Operation Iraqi Freedom beginning on 13 December 2003, shows the following: * he was honorably discharged on 14 March 2006, under the provisions of Army Regulation 635-40, paragraph 4-24b, due to disability with severance pay * he was not transferred to another command * his disability rating is 20 percent * he received disability severance pay in the amount of $92,174.40 * his rank/grade at the time of his discharge was SSG/E-6 * his disability severance pay was paid at the highest grade satisfactorily held, which was SFC/E-7 * he was credited with 2 years, 3 months, and 2 days of net active service this period; 13 years, 4 months, and 3 days of total prior active service; and 8 years, 9 months, and 24 days of total prior inactive service 20. The applicant’s NGB Form 22 shows the following: * the applicant was honorably transferred to the Retired Reserve on 14 March 2006 under the Provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-39 * he was credited with 24 years, 7 months, and 29 days of net service this period; 0 prior active Federal service; and 24 years and 5 months of total service for retired pay. 21. The applicant’s NGB Form 23B confirms he completed 24 years and 5 months of creditable service for retired pay. 22. A review of the AHRC Soldier Management System (SMS) confirms a transaction was completed to discharge the applicant from the ARNG (previous organization “A”) and archive his record (current organization “Y”) on 14 March 2006, due to medical unfitness for retention. On the same date, 14 March 2006, a second transaction was completed to transfer the applicant from the ARNG (previous organization “A”) to the Retired Reserve (current organization “R”) due to medical unfitness for retention. 23. There is no evidence of record the applicant voluntarily elected and applied for transfer to the Retired Reserve in lieu of acceptance of physical disability separation with severance pay on 14 March 2006. 24. A VA Rating Decision, dated 27 February 2007, shows the applicant was granted a service-connected disability for the following conditions effective 15 March 2006: * PTSD, with major depression, 50 percent * degenerative disc disease, cervical spine with central canal stenosis and mild left C7 motor radiculopathy, 10 percent * atopic dermatitis, 10 percent * migraine headaches, 10 percent * degenerative disc disease, L5-S1, 0 percent * gastroesophageal reflux disease, 0 percent * patellofemoral malalignment syndrome, right knee, 0 percent * patellofemoral malalignment syndrome, left knee, 0 percent * left elbow epicondylitis, 0 percent * right elbow epicondylitis, 0 percent 25. The applicant provided multiple additional VA letters, dated between June 2007 and September 2017, which have been provided in full to the Board for review. In pertinent part, they show the following: a. Effective 17 March 2010, the applicant’s combined service connected disability rating was 80 percent and that he was entitled to receive compensation at the 100 percent rate because hew as unemployable due to his service-connected disability. b. Effective 2 September 2017, his service-connected disability rating for migraine headaches was increased from 30 percent to 50 percent. 26. A DD Form 108 (Application for Retired Pay Benefits), shows on 23 September 2021 the applicant applied for retired pay benefits to begin on 23 June 2022 27. An AHRC, Gray Area Retirement Branch letter dated 29 June 2022, informed the applicant of the following: a. This letter was in response to his DD Form 108, wherein he applied for retired pay benefits. In order to be eligible for retired pay at age 60, under Title 10, U.S. Code, sections 12731-12737, a Reserve component Soldier must not have elected to receive severance pay in lieu of non-regular retired pay. b. An audit of his military records shows he received disability severance pay in March 2006, thus severing all ties with the military. Accordingly, he was ineligible to receive retired pay. Therefore, the AHRC, Gray Area Retirements Branch was denying his applicant for retired pay. Under current law, his service does not fulfill the requirements for entitlement to retirement. c. The applicant was advised if he found this record to be incorrect, he may reapply by providing the appropriate documentation to substantiate qualifying retirement eligibility. 28. 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. 29. 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. 30. 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. 31. 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 is applying to the ABCMR requesting a reevaluation of his military disability rating, to have his PTSD found unfitting for military service prior to his separation with severance pay in 2006, and to have his election to separate from the Army reversed so as to change his separation disposition from separation with disability severance pay to transfer to the Retired Reserve. He states: “According to NDAA of 2008 Pub. L.110-181, Changes were made IAW DOD rating certain medical conditions. These ratings differed from the VASRD [VA Schedule for Rating Disabilities] ratings which were to be applied. Additionally, The Secretary of Defense directed as policy that PDBR/ABCMR will apply VASRD section 4.129 to PTSD unfitting conditions for applicants discharged on or after September 11, 2001, at least in part due to PTSD. I was to be placed on TDRL and rated at 50% for six (6) months and then reevaluated for disabilities. Neither of these actions were applied to myself. I am requesting this correction due to the fact upon my discharge I was a GAR [gray area retiree]. I have now reached the age of 60 (23 June 2022). I submitted my retirement packet to HRC as directed 9 months prior to my 60th birthday... I received a letter via USPS from US ARMY HRC [Human Resources Command] stating that I am not Eligible to receive my Gray Area Retirement. This memo was signed by , Major, US Army, Chief, Gray Area Retirement Branch. The memo was dated 29 June 2021.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Orders published by the Installation Management Agency at Ft. Carson, Colorado on 23 February show the applicant was to be separated with disability severance pay on 14 March 2006 under provisions in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation. d. Becoming statute on 28 January 2008 as part of the National Defense Authorization Act (NDAA) for 2008, 10 USC §1216a only reaffirmed and further defined the use of the VA Schedule for Rating Disabilities (VASRD) for determining military disability ratings: “(a) UTILIZATION OF VA SCHEDULE FOR RATING DISABILITIES IN DETERMINATIONS OF DISABILITY.— (1) In making a determination of disability of a member of the armed forces for purposes of this chapter, the Secretary concerned— (A) shall, to the extent feasible, utilize the schedule for rating disabilities in use by the Department of Veterans Affairs, including any applicable interpretation of the schedule by the United States Court of Appeals for Veterans Claims; and (B) except as provided in paragraph (2), may not deviate from the schedule or any such interpretation of the schedule.” e. The VA Schedule for Rating Disabilities (VASRD) has long been used by the Services to rate military disabilities. Paragraph B-1a and B1b of Appendix B to AR 635- 40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006): B–1. Purpose of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) a. Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel. Such decisions are to be made according to Title IV of the Career Compensation Act of 1949 (Title IV is now mainly codified in 10 USC 61.) b. Percentage ratings in the VASRD represent the average loss in earning capacity resulting from these diseases and injuries. The ratings also represent the residual effects of these health impairments on civil occupations. f. Not only did 10 USC §1216a reaffirm the use of the VARD in military disability ratings, but it also essentially removed any ability of the Services to deviated from the it’s use and firmly established the Services were to use the entire VASRD with it’s many rules and not just the rating tables. This includes the section referenced by the applicant, 38 CFR §4.129: “When a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.” g. In the applicant’s case, he was not in active military service at the time of his release from the Army but was a drilling member in the Colorado Army National Guard; and his final Physical Evaluation Board (PEB) Proceedings show his unfitting disabilities were “Cervical degenerative disc disease” and “Migraine headaches.” His PTSD had been determined to not be unfitting for continued service. h. In October 2005, a medical evaluation board determined his “Chronic neck pain with cervical degenerative disc disease and disc protrusion with paresthesias” and “Chronic headaches (migraine variant with triggering from his cervical degenerative disc disease or cervicogenic in nature” failed the medical retention standards in chapter 3 of AR 40-501, Standards of Medical Fitness. The Board determined his “Posttraumatic stress disorder,” “Dyslipidemia,” and “Intermittent low back pain” were conditions which did not fail chapter 3 retention standards. The applicant appealed these findings but neither the appeal nor the appeal response is available for review. i. On 7 December 2005, his informal PEB determined his cervical neck condition and headaches were unfitting for continued military service and the remaining three conditions were not unfitting for continued military service. Using the VASRD, the PEB derived and then applied 10% and 0% ratings respectively. Because his combined military disability rating was less than 30%, they recommended the applicant be separated with disability severance pay. The applicant non-concurred with the PEB’s initial findings and demanded a formal hearing with the assistance of regularly appointed counsel. j. The formal PEB convened on 11 January 2006 and determined the rating for his migraines should be increased to 10% thus yielding a combined military disability rating on 20%. Because this rating remained less than 30%, the PEB again recommended the applicant be separated with disability severance pay. On 18 January 2006, after being counseled on the formal PEB’s findings by his PEB Liaison Officer, the applicant concurred with the formal PEB’s findings. k. The VA’s Disability Ratings Activity Sites have personnel thoroughly trained in the derivation of disability ratings using the VASRD. Review of the applicant’s 15 September 2017 VA ratings decision code sheet shows the VA also applied 10% ratings to these two conditions with the effective date of 15 March 2006, the day after his separation with disability severance pay. l. The applicant’s Notification of Eligibility for Retired Pay at Age 60 memorandum dated 8 November 2001 show he had completed his 20th year of service for retirement. Chapter 67 of Title 10 USC allows a Soldier with a disability rating of less than 30% and who has at least 20 qualifying years for a non-regular (aka reserve) retirement to either accept disability severance pay in lieu of and thereby forfeiting their non-regular retirement or request transfer to the Retired Reserves and receive their non-regular retirement when eligible, typically at age 60. m. The supporting documents contains his memorandum of elections “SUBJECT: Transfer to an Inactive Status or Discharge with Severance Pay” (page 63) which stated: “1. Reference is made to memorandum from your Headquarters dated 28 January 2004. After careful consideration, I hereby elect to: (Check one block below) a. Be transferred to the Retired Reserve pursuant to Title 10 USC 1209, with entitlement to apply for retirement benefits upon reaching age sixty (60). b. Be discharged with entitlement to receive disability severance pay, pursuant to Title 10 USC 1212. 2. I understand that this election is final and conclusive for all purposes and may not be changed.” n. By initialing block 1b and signing the form, the applicant elected to receive disability severance pay and forgo later eligibility for a non-regular retirement as part of his formal PEB concurrence. o. This election is irrevocable. Paragraph 8-9a(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990) states: “According to the provisions of 10 USC §1209 and §1213, all rights to receive retired pay at age 60 are forfeited if disability severance pay is accepted instead of transfer to the Retired Reserve. Disability severance pay (unlike readjustment and separation pay) cannot be repaid for the purposes of receiving retired pay.” p. There is no evidence the applicant had any additional duty incurred medical condition(s) 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(s) prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. q. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings, including one for PTSD. 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. r. It is the opinion of the ARBA medical advisor that granting the applicant’s request to retroactively change his disability discharge election and disposition is, unfortunately, contrary to US Code: His election for severance pay was voluntary, undertaken after counseling, and the potential consequences of his election were known. It is also the opinion of the ARBA medical advisor that a referral of his case to the Disability Evaluation System is also unwarranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advisory official finding no evidence the applicant had any additional duty incurred medical condition(s) which would have failed the medical retention standards of chapter 3 of AR 40-501, prior to his discharge. The Board noted, there was no cause for referral to the Disability Evaluation System based on the medical review. Furthermore, there is no evidence that any additional medical condition(s) prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. The Board determined, based on the preponderance of evidence and medical review opine, relief was not warranted. 2. The Board determined DES compensates an individual only for service incurred condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. 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, 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. 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. 3. 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. 4. 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 a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 Physical Evaluation Board (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. 5. 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. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. d. When a Reserve Component Solider serving on active duty for more than 30 days is given a disability rating of less than 30 percent for a disability which is the proximate result of performing active duty or was incurred in the line of duty or aggravated by serve and he/she has at least 20 qualifying years for retirement for non- regular service, the DA Form 199 (Physical Evaluation Board (PEB) Proceedings) will include the following advisory statement: “You have the option of accepting discharge with disability severance pay and forfeiting retirement for non-regular service; or you may request transfer to the Retired Reserve and receive retired pay at age 60. According to Title 10, U.S. Code, sections 1209 and 1213, you will forfeit all rights to retired pay if you accept severance pay instead of transfer to the Retired Reserve.” 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. Title 38, U.S. Code, section 4.129 states when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six month period following the veteran's discharge to determine whether a change in evaluation is warranted. 10. 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) AR20220010836 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1