IN THE CASE OF: 

		BOARD DATE: 7 June 2023

		DOCKET NUMBER: AR20220011033


APPLICANT REQUESTS: increase of his physical disability retirement rating.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 his disability rating should be updated and increased. His 
anxiety and depressive disorder, memory loss, chronic sleep disorder, and difficulty 
adapting to stressful circumstance, have contributed to him forgetting directions, names, 
dates, and he has an inability to establish and maintain effective relationships.

3.  On 16 August 1979, the applicant reenlisted in the Regular Army (RA) for a period of 
6 years in pay grade E-5. He held military occupational specialty (MOS) 19D (Cavalry 
Scout). On 21 June 1984, he extended his 6-year enlistment in the RA to a period of 
8 years and 6 months to complete an overseas tour in Hawaii. The period of extension 
was 30 months.

4.  A DA Form 3349 (Physical Profile Board Proceedings) confirms on 18 July 1983, the 
applicant was issued a permanent physical profile of 113111. His physical defects are 
listed as status post diskectomy and foraminotomy May 1983 with residual leg pain. His 
assignment limitations were:

*	running, not to exceed ½ mile, at own pace
*	lifting, not to exceed 50 pounds
*	sit-ups, not to exceed 5 at a time
*	reevaluate in 1 year

A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 
2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = 
upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = 
psychiatric (abbreviated as PULHES). Each body system has a numerical 
designation: 1 meaning a high level of fitness; 2 indicates some activity limitations 
are warranted, 3 reflects significant limitations, and 4 reflects one or more medical 
conditions of such a severity that performance of military duties must be drastically 
limited. Physical profile ratings can be either permanent or temporary.

5.  A Summary of MOS/Medical Retention Board (MMRB) Proceedings confirms on 
14 November 1984, an MMRB determined the applicant’s permanent medical condition 
prevented him from performing the full range of physical tasks required of his primary 
MOS and recommended reclassification into MOS 73C (Finance Specialist), 71M 
(Chapel Activities Specialist), or 76X (Subsistence Supply Specialist). On 10 December 
1984, the recommendation was approved and forwarded to Headquarters Department 
of the Army for final reclassification action.

6.  The applicant’s DA Form 3947 (Medical Evaluation Board (MEB) Proceedings) 
confirms the board convened on 11 July 1985.

     a.  The MEB found after consideration of clinical records, laboratory findings, and 
physical examination, the applicant had the following medical conditions/defects that 
failed medical retention standards:

*	status post L-5 S-1 herniated nucleus pulposus
*	status post L-5 S-1 diskectomy with foraminotomy of the S-1 nerve root 27 
May 1983
*	chronic left leg pain, severe secondary to diagnosis
*	pseudomeningocele at level of L-5 S-1 secondary to lumbar surgery, unfit 
under the provisions (UP) of Army Regulation (AR) 635-40, paragraph 3-34c

b. The following conditions were found to meet retention standards:

*	chronic sinusitis
*	external hemorrhoids

     c.  The findings and recommendation of the board were approved on 11 July 1985, 
and the applicant agreed with the board's findings and recommendations on 15 July 
1985. Accordingly, his case was forwarded to a Physical Evaluation Board (PEB).


7.  A DA Form 199 (PEB Proceedings) shows the PEB convened on 22 July 1985 and 
found the applicant unfit with a recommended combined disability rating of 40% and that 
his disposition be permanent disability retirement.

     a.  The applicant’s unfitting condition was neuritis, sciatic nerve; status post 
herniated nucleus pulposus, L5 S1; status post diskectomy of S1 nerve root; with 
chronic left leg pain and pseudomeningocele; rated severe. 

     b.  The PEB noted, “Member is unfit for continued service because of chronic left leg 
and back pain post-surgical procedures with recurrence of symptoms. Member requires 
a back brace for support. Condition has existed over two years; therefore, permanent 
disposition is recommended.”

8.  On 23 July 1985, the applicant did not concur with the PEB findings and 
recommendation and demanded a formal hearing.

9.  PEB Proceedings show the PEB reconsidered the applicant’s conditions on 
25 September 1985 and found him unfit with a recommended combined disability rating 
of 50% and that his disposition be permanent disability retirement for the following 
conditions:

a.	The applicant’s unfitting conditions were:

*	neuritis, sciatic nerve; status post herniated nucleus pulposus, L5 51; status 
post diskectomy of 51 nerve root; with chronic left leg pain and 
pseudomeningocele; rated at 40%.
*	sinusitis, maxillary, chronic, moderate; rated at 10%

b.	The PEB stated, 

Reconsidered UP AR 635-40. Soldier is unfit for continued service because of 
chronic left leg and back pain post-surgical procedures with recurrence of 
symptoms. Soldier requires a back brace for support. This condition has 
existed over 2 years. At the request of counsel, the case is reconsidered, and 
the PEB now finds that a rating for the sinus condition is warranted. 
Permanent disposition is recommended.

10.  On 27 September 1985, the applicant concurred with the 25 September 1985 
reconsidered PEB and withdrew his request for a formal PEB hearing. On 9 October 
1985, the PEB was approved for the Secretary of the Army.

11.  Orders D204-1, from the U.S. Army Military Personnel Center, Alexandria, VA, 
confirms the applicant was retired on 27 November 1985 and was placed on the retired 
list on 28 November 1985 with a 50 % disability rating, in the rank/grade of staff 
sergeant/E-6.

12.  Accordingly, on 27 November 1985, the applicant was retired under provisions of 
AR 635-40, paragraph 4-24e(1), physical disability, permanent, in pay grade E-6. His 
DD Form 214 shows he completed 6 years, 3 months, and 12 days of net active service 
during this period and 3 years, 10 months, and 28 days of total prior active service. His 
DD Form 214 also shows 3 years of foreign service [Hawaii]. He was awarded the Army 
Commendation Medal, Good Conduct Medal (3rd Award), Driver Mechanic Badge, 
Army Service Ribbon, Overseas Service Ribbon, Noncommissioned Office Professional 
Development Ribbon (2nd Award), Marksman Marksmanship Qualification Badge Rifle 
(M-16), and Sharpshooter Marksmanship Qualification Badge Machinegun (M-60).

13.  AR 635-40, states 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. 

14.  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 Department 
of Veterans Affairs (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.

15.  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. An award of 
a VA rating does not establish an error or injustice on the part of the Army.

16.  Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating 
disabilities. The VA awards disability ratings to veterans for service-connected 
conditions, including those conditions detected after discharge. As a result, the VA, 
operating under different policies, may award a disability rating where the Army did not 
find the member to be unfit to perform their 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.

17.  MEDICAL REVIEW:

    a.  The applicant is applying to the ABCMR requesting an increase of his physical 
disability retirement rating due to mental health conditions. 

    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 Regular Army on 16 August 1979; 2) On 27 November 1985, 
the applicant was medically retired under provisions of AR 635-40, paragraph 4-24e(1), 
physical disability, permanent, in pay grade E-6. He was found to be 50% disabled for 
the unfitting conditions of: A) neuritis, sciatic nerve; status post herniated nucleus 
pulposus, L5 51; status post diskectomy of 51 nerve root; with chronic left leg pain and 
pseudomeningocele; rated at 40%; B) sinusitis, maxillary, chronic, moderate; rated at 
10%.

    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. No additional medical documentation was 
provided

    d.  The applicant states he incurred a psychiatric disability in addition to his physical 
disability, while he was on active service. Specifically, the applicant reported 
experiencing an “anxiety and depressive disorder, memory loss, chronic sleep disorder, 
and difficulty adapting to stressful circumstance which have contributed to him forgetting 
directions, names, dates, and he has an inability to establish and maintain effective 
relationships.” There was no available evidence the applicant reported any mental 
health symptoms while on active service.

    e.  A review of JLV provided evidence the applicant was found to be 50-percent 
service connected for depression since 2018. The applicant did report attending a few 
sessions while on active service due to stress related to his wife’s pregnancy, but there 
is no record of these encounters. He also reported increased depression in 2018 related 
to his son’s suicide and his recent diagnosis of prostate cancer.

    f.  Based on the available information, it is the opinion of the Agency BH Advisor that 
there is insufficient evidence the applicant had a qualifying mental health condition or 
any 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.  

    g.  It is the opinion of the Agency Medical Advisor that a referral of his case to the 
Disability Evaluation System is unwarranted.

Kurta Questions:

A.	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 because he incurred a psychiatric disability.

B.	Did the condition exist or experience occur during military service?  Yes, the 
applicant reports experiencing this psychiatric disability while on active service.

C.	Does the condition experience actually excuse or mitigate the discharge? No, 
there is insufficient evidence the applicant had a qualifying mental health 
condition or any 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.  It is the opinion of the Agency Medical Advisor that 
a referral of his case to the Disability Evaluation System is 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. The Board also considered the findings of the PEB. Upon review of the 
applicant’s petition, available military records and the medical review, the Board 
concurred with the advisory official finding a referral of his case to the Disability 
Evaluation System is unwarranted. Based on the advisory opine the Board determined 
there is insufficient evidence the applicant had a qualifying mental health condition, or 
any 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. Based upon a preponderance of the evidence, the Board determined the 
final decision made by the PEB was not in error or unjust. Therefore, the Board denied 
relief. 

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.  


?
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.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at 
the time, established the Army Physical Disability Evaluation System and set 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.  Paragraph 3-2 states 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.  Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting 
disabilities must meet the following line-of-duty criteria to be eligible to receive 
retirement and severance pay benefits:

		(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.

3.  Title 10, U.S. Code, Chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability. The U.S. Army Physical Disability Agency 
is responsible for administering the Army Physical Disability Evaluation System and 
executes Secretary of the Army decision-making authority as directed by Congress in 
chapter 61 and IAW DOD Directive 1332.18 and AR 635-40.

	a.  Soldiers are referred to the disability system when they no longer meet medical 
retention standards IAW AR 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 military occupational specialty medical retention 
board; and/or they are command-referred for a fitness-for-duty medical examination.

	b.  The disability evaluation assessment process involves two distinct stages: the 
MEB and PEB. The purpose of the MEB is to determine whether the service member's 
injury or illness is severe enough to compromise his/her ability to return to full duty 
based on the job specialty designation of the branch of service. A PEB is an 
administrative body possessing the authority to determine whether or not a service 
member is fit for duty. A designation of "unfit for duty" is required before an individual 
can be separated from the military because of an injury or medical condition. Service 
members who are determined to be unfit for duty due to disability either are separated 
from the military or are permanently retired, depending on the severity of the disability 
and length of military service. Individuals who are "separated" receive a one-time 
severance payment, while veterans who retire based upon disability receive monthly 
military retired pay and have access to all other benefits afforded to military retirees.

	c.  The mere presence of a medical impairment does not in and of itself justify a 
finding of unfitness. In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his or her office, grade, rank, or rating. 
Reasonable performance of the preponderance of duties will invariably result in a 
finding of fitness for continued duty. A Soldier is physically unfit when a medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

4.  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.

5.  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.

6.  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. 

7.  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.  

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)	AR20220011033


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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