IN THE CASE OF: 

		BOARD DATE: 24 January 2023

		DOCKET NUMBER: AR20220003540


APPLICANT REQUESTS: personal appearance via video or telephone, and correction 
of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect:

*	Item 4a (Grade, Rate or Rank): SGT (sergeant) vice SPC (specialist) and 4b 
(Pay Grade): E05 vice E04
*	Item 26 (Separation Code): SFJ vice MBK
*	Item 28 (Narrative Reason for Separation): Disability, Permanent vice completion 
of required active service

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

*	DD Form 149 (Application for Correction of Military Record)
*	Department of Veterans Affairs (DVA) letter, 20 December 2021
*	Rating decision letter, 17 December 2021

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 he served on active duty in the U.S. Army from 3 January 2003 
until 7 April 2007. He separated from service without being given a proper Medical 
Evaluation Board (MEB), or a Physical Evaluation Board (PEB). He served during 
Operation Iraqi Freedom for twelve months. At time of clearing service, he was rated by 
the DVA with a disability rating of 30% (listed in the VA Decision letter) while separating 
from active service in April of 2007. This rating should have entitled him the opportunity 
to be put on the Permanent Disability Retired List (PDRL) under Chapter 61 in Title 10 
U.S. Code §1208. The regulations states, "The Permanent Disability Retired List, 
governed by 10 U.S. Code § 1201 is for service members who are unfit for duty with a 
permanent condition and either: The member has at least 20 years of service, or the 
disability is at least 30% and incurred in the line of duty". His injuries and disabilities 
made it difficult for him to continue service, so he had to end his military career earlier 
than planned. He is now rated permanently and totally disabled at 100% by the DVA, 
which further supports his claim of his disabilities caused by active-duty service, medical 
retirement separation, and a disabled "permanent" separation code correction. He was 
not properly separated before leaving service. His right to a MEB and PEB was not 
granted. This process was not mentioned to him, nor was it offered by his superiors. His 
ailments caused him to separate from service unexpectedly, and he was not given 
proper medical attention. His long-term health has been greatly affected because of the 
mishandling of this information.

3.  The applicant enlisted in the Regular Army on 9 January 2003. He held military 
occupational specialty 25U (Signal Support Systems Specialist).

4.  He served in Iraq from 26 November 2004 until 25 November 2005. His enlisted 
record brief shows he was advanced to specialist/E-4 on 9 March 2005. There are no 
orders within his records which shows he was promoted to sergeant.

5.  He enlisted in the North Carolina Army National Guard (NCARNG) on 15 February 
2007.

6.  On 7 April 2007, he was honorably released from active duty in accordance with 
chapter 4 of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative 
Separations) due to completion of his required service. He and transferred to the Army 
National Guard (ARNG) Troop Program Unit (TPU). His DD Form 214 shows he 
completed 4 years, 2 months, and 29 days of active service this period. It also shows:

*	Item 4a (Grade, Rate or Rank): SPC and 4b (Pay Grade): E-4
*	Item 12h (Effective Date of Pay Grade) 9 March 2005
*	Item 26 (Separation Code): MBK
*	Item 28 (Narrative Reason for Separation): completion of required active service

7.  On 1 December 2007, the applicant requested transfer to inactive national guard due 
to employment for a government contractor position with ISP (unknown). His 
commander recommended approval of his request.

8.  Orders 057-876, issued by Department of Crime Control and Public Safety, Raleigh, 
NC, on 26 February 2008, shows he was released from his NCARNG TPU and 
transferred to the inactive National Guard effective 1 January 2008, for a period of 
1 year for the purpose of civilian employment.

9.  On 7 April 2010, the applicant was honorably discharged from the NCARNG. His 
NGB Form 22 (Report of Separation and Record of Service) shows he completed 
3 years net service this period. His reason for separation was ETS (expiration term of 
service).
10.  There is no available evidence indicating the applicant was issued a permanent 
profile or was diagnosed with a condition that did not meet medical fitness standards in 
accordance with AR 40-501 (Standards of Medical Fitness) during his period of service.

11.  On 9 February 2018, U.S. Army Human Resources Command notified the applicant 
they reviewed his claim for Combat-Related Special Compensation (CRSC) and have 
found that he currently does not meet eligibility requirements. In order to submit an 
eligible claim for CRSC, Department of Defense (DoD) guidelines require that he meets 
all of the following requirements:

*	receiving military retired pay
*	have 10% or greater VA rated injury
*	military retired pay is reduced by VA disability payments (VA Waiver)

12.  The applicant provided his DVA rating decision dated 17 December 2021, which 
shows his rating decision evaluation of post-traumatic stress disorder (PTSD) with 
insomnia and depressive disorder, which is currently 0 percent disabling, was increased 
to 50 percent effective 2 November 2021.

13.  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.

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/or 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, in essence, a referral to the 
Disability Evaluation System (DES).  He states:

“I, {Applicant}, served on active duty in the U.S. Anny from January 3rd, 2003 
until April 7th, 2007.  I separated from service without being given a proper 
Medical Evaluation Board (MEB), or a Physical Evaluation Board.  I served 
during Operation Iraqi Freedom for twelve months.  At time of clearing service, I 
was rated by the Department of Veterans Affairs with a disability rating of 30% 
(listed in the VA Decision letter) while separating from active service in April of 
2007.  This rating should have entitled me the opportunity to be put on the 
Permanent Disability Retired List (PDRL) under Chapter 61 in Title 10 U.S. 
Code§ 1208 ...

My injuries and disabilities made it difficult for me to continue service, so had to 
end my military career earlier than planned.  I'm now rated permanently and 
totally disabled at 100% by the Department of Veterans Affairs, which further 
supports my claim of my disabilities caused by active-duty service, medical 
retirement separation, and a disabled ‘permanent’ separation code correction.”

    b.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  The applicant’s DD 214 shows he entered the regular Army 
on 9 January 2003 and was honorably discharged on 7 April 2007 at the completion of 
his required active service under authority provided in chapter 4 of AR 635-200, Active 
Duty Enlisted Administrative Separations (17 December 2009).  Is shows he served in 
Iraq from 26 November 2004 thru 25 November.  His reentry code of 1 denotes he was 
fully qualified to reenlist.

    c.  His National Guard Report of Separation and Record of Service (NGB Form 22) 
for the period of Service under consideration shows he enlisted in the Army National 
Guard on 8 April 2007 and received an honorable discharge from the North Carolina 
Army National Guard (NCARNG) on 7 April 2010 under the separation authority 
provided by paragraph 6-35a of NGR 635-200, Enlisted Personnel Management (31 
July 2009): ETS {expiration – term of service}.  It shows a total  service that period of 3 
years, 0 months, and 0 days.  The reenlistment eligibility “RE-1” denotes the applicant 
was fully qualified to reenlist.


    d.  No medical documentation was submitted with the application, and the applicant 
does not identify which condition(s) he believes to have failed medical retention 
standards and/or been unfitting for continued military service.

    e.  Review of his records in AHLTA show that he underwent an operative repair of a 
torn right patellar tendon during his period of service in the regular Army.  He attended 
several physical therapy sessions with his final session in May 2006 being his final 
AHLTA encounter prior to his separation in 2007.  There are no AHLTA encounters 
corresponding to his period of service in the NCARNG.

    f.  The applicant has no medical documentation in MEDCHART. 

    g.  There is no probative evidence the applicant had any medical condition which 
would have failed the medical retention standards of chapter 3 of AR 40-501, Standards 
of Medical Fitness, prior to his voluntary separations; or which prevented the applicant 
from reenlisting and continuing his military career.  Thus, there was no cause for referral 
to the Disability Evaluation System.  Furthermore, there is no evidence that any medical 
condition prevented the applicant from being able to reasonably perform the duties of 
his office, grade, rank, or rating prior to his voluntary separations.

    h.  Review of his records in JLV shows he has been awarded multiple VA service-
connected disability ratings.  However, the DES compensates an individual only 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.

    i.  Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or 
Separation (8 February 2006) states: “The mere presence of an 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 Soldier reasonably may be expected to perform because 
of their office, grade, rank, or rating.”

    j.  It is the opinion of the ARBA medical advisor that a referral of his case to the DES 
is unwarranted.  

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 applicant’s 
contentions, the military record, and regulatory guidance were carefully considered.

	a.  The Board reviewed and agreed with the medical advisor’s finding no probative 
evidence the applicant had any medical condition which would have failed the medical 
retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his 
voluntary separations; or which prevented the applicant from reenlisting and continuing 
his military career. Thus, there was no cause for referral to the Disability Evaluation 
System. Furthermore, there is no evidence that any medical condition prevented the 
applicant from being able to reasonably perform the duties of his office, grade, rank, or 
rating prior to his voluntary separations.

	b.  The Board further determine that the applicant was promoted to SPC/E-4 on 30 
March 2005. There is no evidence he was promoted beyond this grade prior to his 
release from active duty on 7 April 2007. As such, his DD Form 214 correctly reflects his 
rank/grade and effective date of pay grade. 

	c.  The applicant was honorably released from active duty on 7 April 2007 in 
accordance with chapter 4 of AR 635-200 due to completion of his required service. He 
was assigned Separation Code MBK which is the appropriate code assigned to enlisted 
Soldiers separating under chapter 4 of AR 635-200 due to completion of required 
service. 

	d.  Based on a preponderance of evidence, the Board determined that the 
Separation Code, Reason for Separation, and Rank/Grade the applicant received upon 
separation were not in error or unjust.

?
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.  Army Regulation (AR) 15-185 (ABCMR) 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, which is that what the Army did was correct.

	a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application. The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence 
or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right 
to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing 
whenever justice requires.

3.  Title 10, USC, Section 1201 provides for the physical disability retirement of a 
member who has either 20 years of service or a disability rating of 30% or greater.

4.  Title 10, USC, Section 1203 provides for the physical disability separation of a 
member who has less than 20 years of service and a disability rating at less than 30%.

5.  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.

	a.  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.

	b.  The VA does not have authority or responsibility for determining physical fitness 
for military service. The VA awards disability ratings to veterans for service-connected 
conditions, including those conditions detected after discharge, to compensate the 
individual for loss of civilian employability. 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 her 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.

6.  AR 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 for a medical evaluation board that 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, chapter 3. 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.  The mere presences of an 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 
Soldier reasonably may be expected to perform because of their office, grade, rank, or 
rating.

	b.  To ensure all Soldiers are physically qualified to perform their duties in a 
reasonable manner, medical retention qualification standards have been established in 
AR 40–501, chapter 3. These standards include guidelines for applying them to fitness 
decisions in individual cases. These guidelines are used to refer Soldiers to a MEBD. 
The major objective of these standards is to achieve uniform disposition of cases arising 
under the law. These retention standards and guidelines should not be interpreted to 
mean that possessing one or more of the listed conditions or physical defects signifies 
automatic disability retirement or separation from the Army. The fact that the Soldier has 
one or more defects sufficient to require referral for evaluation, or that these defects 
may be unfitting for Soldiers in a different office, grade, rank, or rating, does not justify a 
decision of physical unfitness.

	c.  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 they can no longer continue to reasonably perform because of a physical disability 
incurred or aggravated in service.

	d.  When a Soldier is being processed for separation or retirement for reasons other 
than physical disability, continued performance of assigned duty commensurate with his 
or her rank or grade until the Soldier is scheduled for separation or retirement, creates a 
presumption that the Soldier is fit. An enlisted Soldier whose reenlistment has been 
approved before the end of his or her current enlistment, is not processing for 
separation; therefore, this rule does not apply. The presumption of fitness may be 
overcome if the evidence establishes that—

		(1)  The Soldier was, in fact, physically unable to perform adequately the duties 
of his or her office, grade, rank or rating for a period of time because of disability. There 
must be a causative relationship between the less than adequate duty performance and 
the unfitting medical condition or conditions.

		(2)  An acute, grave illness or injury or other significant deterioration of the 
Soldier’s physical condition occurred immediately prior to, or coincident with processing 
for separation or retirement for reasons other than physical disability and which 
rendered the Soldier unfit for further duty.

	e.  Medical Evaluation Boards (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 (Standards of Medical Fitness), Chapter 3 (Medical Fitness 
Standards for Retention and Separation, Including Retirement). If an MEB determines 
the Soldier does not meet retention standards, the board will recommend referral of the 
Soldier to a PEB.

	f.  The MEBD will recommend referral to a PEB those Soldiers who do not meet 
medical retention standards. A Soldier being processed for non-disability separation will 
not be referred to a PEB unless the Soldier has medical impairments that raise 
substantial doubt as to his or her ability to continue to perform the duties of his or her 
office, grade, rank, or rating.

	g.  The PEBs are established to evaluate all cases of physical disability equitably for 
the Soldier and the Army. The PEB is not a statutory board. Its findings and 
recommendations may be revised. It is a fact-finding board for the following:

		(1)  Investigating the nature, cause, degree of severity, and probable 
permanency of the disability of Soldiers whose cases are referred to the board.

		(2)  Evaluating the physical condition of the Soldier against the physical 
requirements of the Soldier’s particular office, grade, rank, or rating.

		(3)  Providing a full and fair hearing for the Soldier as required by under Title 10, 
United States, Section 1214, (10 USC 1214).

		(4)  Making findings and recommendations required by law to establish the 
eligibility of a Soldier to be separated or retired because of physical disability (10 USC 
61).

7.  AR 40-501 (Medical Services - Standards of Medical Fitness), provides governed 
medical fitness standards for enlistment, induction, and appointment, retention, 
separation (including retirement), certain enlisted military occupational specialties and 
officer assignments, physical profiles, and medical examinations and periodic health 
assessments.

	a.  Paragraph 3-3d (Disposition), physicians who identify Soldiers with medical 
conditions listed in this chapter should initiate an MEB at the time of identification. 
Physicians should not defer initiating the MEB until the Soldier is being processed for 
non-disability retirement.

	b.  Paragraph 3-4 states possession of one or more of the conditions listed in this 
chapter does not mean automatic retirement or separation from the Service. Physicians 
are responsible for referring Soldiers with conditions listed below to an MEB. It is critical 
that MEBs are complete and reflect all of the Soldier’s medical problems and physical 
limitations. The PEB will make the determination of fitness or unfitness. The PEB, under 
the authority of the U.S. Army Physical Disability Agency, will consider the results of the 
MEB, as well as the requirements of the Soldier’s MOS, in determining fitness.

8.  AR 635-5 (Separation Documents), the DD Form 214 is a summary of the Soldier's 
most recent period of continuous active duty. The information entered thereon reflects 
the conditions as they existed at the time of separation. Block 4 GRADE, RATE or 
RANK states enter active duty grade or rank and pay grade at time of separation from 
ERB/ORB.

9.  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)	AR20220003540


1
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1