IN THE CASE OF: BOARD DATE: 31 October 2022 DOCKET NUMBER: AR20220003035 APPLICANT REQUESTS: in effect, physical disability retirement or separation with severance pay in lieu of separation from the service without benefits APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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 all of his mental health issues started and are associated to his military sexual assault (MST) while in time of service. 3. The applicant completed a Report of Medical History on 21 November 1990, in which he stated his health was good and only marked yes for eyes and broken bone which occurred in the 7thh grade. A Report of Medical Examination shows he was qualified for service in the Army Reserve. 4. He enlisted in the U.S. Army Reserve (USAR) on 21 November 1990. He entered a period of active-duty training (ADT) on 19 June 1991. He held military occupational specialty (MOS) 63E (Heavy Construction Equipment Operator). He was released from active duty on 26 October 1991, for completion of ADT. His character of service was uncharacterized. 5. The applicant enlisted in the Regular Army on 7 October 1992, for a period of three years. 6. A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 17 March 1994, shows a PEB convened found the applicant physically unfit for bipolar disorder manic type severe with psychotic features. a. The PEB stated the following regarding the applicant’s unfitting condition: Impairment for social and industrial adaptability considerable. Existed prior to service (EPTS). History of previous hospitalization at age 16 years for manic psychosis. Normal progression, symptomatic under the normal rigors of military service. b. The PEB further stated, his unfitting condition was found to be not service incurred or permanently aggravated. His impairment existed prior to active duty (EPTS) and his disability had increased only to the extent of its accepted normal and natural progression therefore there was no permanent service aggravation. Because his condition was not service incurred or permanently aggravated, he was ineligible for disability compensation and was therefore separated without disability benefits. c. The board recommended the applicant to be separated from the service without disability benefits. d. The applicant concurred and waived a formal hearing of his case on 13 April 1994. 7. The applicant’s duty status was changed on/from/to: * 24 March 1994/0730 hours, present for duty to absent without leave (AWOL) * 3 April 1994/1500 hours, AWOL to returned to military control 8. The applicant was reduced from private first class to private due to article 15, on 11 April 1994. 9. Orders 77-2, issued by Headquarters, Madigan Army Medical Center, on 23 June 1994, shows he was to be discharged on 30 June 1994. 10. On 30 June 1994, he was honorably discharged under the provisions of Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirement, or Separation) paragraph 4-24e (B). His DD Form 214 shows he completed 1 year, 8 months, and 13 days of net active service this period. His DD Form 214 also shows item 28 (Narrative Reason for Separation) as Disability, Existed Prior to Service, Physical Disability Board (PEB). 11. During the processing of this case a report from U.S. Army Criminal Investigation Division regarding the applicant’s claim of MST was requested. A search of the Army criminal file indexes utilizing the information provided revealed no records pertaining to the applicant. 12. 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. 13. Compensable disabilities are those conditions that manifest to at least a certain degree of severity for which the U.S. Department of Veterans Affairs will award monthly disability benefits if service connected. 14. 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. 15. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the DVA, 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 DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 16. 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, now deceased (13 February 2022), had applied to the ABCMR in essence requesting a referral to the Disability Evaluation System (DES). He stated: “All of my mental health issues started and are associated to my sexual trauma (MST) while in service.” b. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 7 October 1992 and and was honorably discharged on 5 December 1990, being separated without disability benefits under the authority provided by paragraph 4- 24e(B){sic} of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). There is no paragraph 4-24e in AR 635-40. The applicant’s separation code on his DD 214 of JFM denotes “Disability, Existed Prior To Service, PEB.” c. 8 The applicant’s pre-entrance Report of Medical History and Report of Medical Examination show him to have been in good health, without any significant medical history or conditions. d. On 17 March 1994, a physical evaluation board (PEB) found his “Bipolar disorder, manic type, severe, with psychotic features” to be his sole unfitting condition for continued military service. They determined the condition had existed prior to service (EPTS), the worsening of his condition was part of the natural progression of the condition, and it was therefore non-compensable: “EPTS. History of previous hospitalization at age 16 years for manic psychosis. Normal progression, symptomatic under the normal rigors of military service.” e. On 13 April 1994, after being counseled on the board’s findings by his PEB liaison officer, he concurred with the PEB’s findings and waived his right to a formal hearing f. Review of the applicant’s records in JLV show he had been diagnosed and treated for both PTSD and bipolar disorder. For unclear reasons, the applicant’s status was Non-Veteran and his primary eligibility code was “Humanitarian Emergency.” He had no service-connected disabilities. g. It is the opinion of the ARBA Medical Advisor that a referral of his case to the Disability Evaluation System is not warranted. BOARD DISCUSSION: 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 request, supporting documents, evidence in the records and the review and opinion of the ARBA Medical Advisor. The Board concurred with the advisory in that the applicant had a pre-existing unfitting condition which was neither service incurred nor permanently aggravated by service. Based on the preponderance of the documentation available for review the Board the determined the evidence presented insufficient to warrant a recommendation for relief. 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. 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. AR 635-40 (Physical Evaluation for Retention, Retirements, 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. 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. 4. 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. 5. Title 38 U.S. Code 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. 6. Title 38 U.S. Code 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. 7. 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) AR20220003035 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1