IN THE CASE OF: BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20220000804 APPLICANT REQUESTS: correction of his record to change his discharge with disability severance pay to a disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: Online application in lieu of DD Form 149 (Application for Correction of Military Record), 4 November 2021. FACTS: 1. The applicant states the Army involuntarily separated him because he was medically unfit to serve. His total combined percentage of disability rating was 30%, which qualified him for a medical retirement; he was separated with severance pay. Since 30% is classified as a medical retirement he would like to know why his case was different and he received separation pay. 2. On 21 June 2016, the applicant enlisted in the Regular Army for a period of 3 years and 19 weeks. He completed Basic Combat Training at Fort Leonard Wood, he completed Advanced Individual Training at Fort Lee, and he was awarded military occupational specialty (MOS) 92S (Shower and Laundry Specialist). 3. He was assigned to 289th Quartermaster Composite Supply Company, Fort Hood, and he attained the grade/pay grade of specialist/E-4. 4. On 17 July 2019, an Informal Physical Evaluation Board (PEB) (DA Form 199) found the applicant physically unfit and recommended a disability rating of 0% (zero percent) and that his disposition be separated with severance pay. a. The Informal PEB noted the Soldier first sought treatment for his condition on 29 May 2018 after falling and injuring his right hand a few days prior while stationed at Fort Hood. He completed an x-ray of his right hand which revealed a fifth metacarpal fracture. Despite treatment, including right hand bracing, physical therapy, and activity modification, he continued to experience pain in his right hand. This board found he was unfit because this condition prevented him from lifting and lowering a 490 pound water heater to a height of 5 feet as part of a six Soldier team, prorated at 81 pounds and carrying it 50 feet while wearing and carrying 80 pounds of uniform and combat equipment in completion of his MOS. b. The Informal PEB noted his disability rating was less than 30 Percent. Soldiers with a disability rating of less than 30%, with less than 20 years of service a computed under Title 10, U.S. Code, Section 1208 (Active plus Reserve Component Service) require separation from service with disability severance pay. c. His case was adjudicated as part of the Integrated Disability Evaluation System (IDES). 5. On 19 July 2019, the Informal PEB Liaison Officer informed him of the findings and recommendations of the Informal PEB and explained to him the result of the findings and recommendations and his legal rights pertaining thereto. 6. On 19 July 2019, he concurred with the findings and recommendations of the Informal PEB, he waived a formal hearing of his case, and he did not request a reconsideration of his VA ratings. 7. On 9 August 2019, an official from the Physical Disability Branch, U.S. Army Human Resources Command, approved the PEB findings that he was physically unfit for active military service. 8. Orders 226-0108, issued by Headquarters, III Corps and Fort Hood, Fort Hood, on 14 August 2019, reassigned him to U.S. Army Transition Point for transition processing. These orders show he was assigned a discharge date of 7 November 2019 with a 0% (zero percent) disability and he was authorized disability severance pay in the pay grade E-4 based on 3 years, 4 months, and 26 days of service as computed by Title 10, U.S. Code Section 1208. 9. On 7 November 2019, he was honorably discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 4 months, and 26 days of net active service and was discharged at the grade/pay grade of specialist/E- 4. It further shows in: * Block 18 (Remarks) – in part, "disability severance pay – $14590.80" * Block 25 (Separation Authority) – Army Regulation (635-40), Chapter 4-24 * Block 28 (Narrative Reason for Separation) – Disability, Severance Pay, Non- Combat Related (Enhanced) 10. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting an increase in his military disability rating with a subsequent change of his disability discharge disposition form separate with severance pay to permanent retirement for physical disability. He states: “At the time of duty, I was unfit to serve so I was involuntarily separated. My total combined disability rate at the time was 30% which classifies as a medical retirement. I was only separated with severance pay.” b. The Record of Proceedings details the applicant’s service and the circumstances of the case. His DD Physical Disability Information Report shows he was to be honorably discharged with disability severance pay on 7 November 2019 under provisions provided in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (19 January 2017). c. A Soldier is referred to the Integrated Disability Evaluation System (IDES) when they have one or more conditions which appear to fail medical retention standards reflected on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldiers 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 other conditions they believe to be service-connected disabilities in block 8 of section II of this form, or on a separate Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). d. 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. The medical evaluation board (MEB) uses these exams along with AHLTA encounters and other information to evaluate all conditions which could potentially fail retention standards and/or be unfitting for continued military service. Their findings are then sent to the physical evaluation board for adjudication. e. All conditions, both claimed and referred, are rated by the VA using the VA Schedule for Rating Disabilities (VASRD). The physical evaluation board (PEB), after adjudicating the case, applies the applicable ratings to the Soldier’s unfitting condition(s), thereby determining his or her 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. f. On 3 May 2019, the applicant was referred to the IDES for “right 5th metacarpal strain.” The applicant claimed six additional conditions on a separate Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ). g. A medical evaluation board (MEB) determined his “Right Fifth Metacarpal fracture with residual pain” failed the medical retention standards of AR 40-501, Standards of Medical Fitness. They determined five additional medical conditions met medical retention standards. On 20 June 2019, the applicant concurred with the MEB’s decision and his case was forwarded to a physical evaluation board (PEB) for adjudication. h. On 17 July 2019, the applicant’s informal PEB found his “Right Fifth Metacarpal fracture with residual pain” to be the sole unfitting for continued military service. They found the five remaining medical conditions not unfitting for continued service. The PEB applied the Veterans Benefits Administration (VBA) derived rating of 0% and recommended the applicant be separated with disability severance pay. On 28 July 2019, after being counseled by his PEB Liaison Officer (PEBLO) on the PEB’s findings and recommendations, the applicant concurred with the PEB’s finding, waived his right to a formal hearing, and declined a VA reconsideration of his disability rating. i. Review of his PEB case file in ePEB along with his encounters in AHLTA revealed no substantial inaccuracies in or discrepancies. j. His records in JLV show he has been awarded multiple service-connected disability ratings. However, the 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 during or permanently aggravated by their military service. These roles and authority are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. k. Given no evidence of error or injustice, it is the opinion of the ARBA Medical Advisor that neither an increase in his military disability rating nor a referral of his case back to the DES is warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the available documentation and the findings and recommendation of the medical advisor, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s narrative reason for separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, United States 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. 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. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the PDES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army Regulation 635-40. a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES: * 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 * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, Human Resources Command c. The PDES assessment process involves two distinct stages: the MEB and the 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 are either 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 retirement payments and have access to all other benefits afforded to military retirees. d. 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. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. 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 service. a. Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 4-10 provides that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in Army Regulation 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. e. Paragraph 4-12 provides that each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. 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, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 8. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000804 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1