IN THE CASE OF: 

		BOARD DATE: 8 February 2023

		DOCKET NUMBER: AR20220003579


APPLICANT REQUESTS:  physical disability retirement in lieu of physical disability 
separation with severance pay.

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

*	DD Form 149 (Application for Correction of Military Record)
*	6 pages of email correspondence
*	Headquarters, U.S. Infantry Center Orders 074-2211, 15 March 1999
*	DD Form 2648 (Pre-separation Counseling Checklist), 16 March 1999
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	125 pages of Department of Veterans Affairs (VA) medical records


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.  His discharge just states “separated,” but he was medically boarded after a line of 
duty (LOD) injury and he was informed that his separation was a medical retirement. 
This error on his DD Form 214 is preventing him from being able to enroll his daughter 
in Tricare, because it shows he was merely discharged instead of medically retired.

     b.  He is not sure why the error occurred, but he was definitely medially boarded and 
retired because he was injured in the LOD. Because the injury was incurred in the LOD 
during a training exercise and was service-connected, he always had VA benefits for 
himself, so he never had the need to apply for Tricare. However, now that he has a 
daughter, he applied for Tricare and that’s when he was informed of the issue. He would 
like to get this resolved so he can provide medical coverage for his little girl. His status 
should be medically retired. This correction would then qualify him for Tricare benefits.
     c.  He has attached his entire VA medical record. It includes the treatment notes for 
his collapsed disc (which was the cause of his discharge) as well as the post-traumatic 
stress disorder (PTSD) diagnosis and treatment. The PTSD was not diagnosed at the 
time of his separation, but he has no recollection of being evaluated for it either. That 
was a couple of decades ago though, so there’s a chance he is mistaken regarding the 
PTSD screening.

     d.  When he was going through the medical board process at Fort Benning, GA, it 
was explained to him that he was being medically retired and that it was the same as if 
he had put in 20 years and gotten out because he was injured in the field. Is this a 
clerical error on his DD Form 214, or was he misled during the separation process?

3.  The applicant enlisted in the Regular Army on 4 June 1998.

4.  A DA Form 2173 (Statement of Medical Examination and Duty Status) shows the 
following:

     a.  On 20 October 1998, the applicant was seen and treated as an outpatient at 
Martin Army Community Hospital, Troop Medical Clinic (TMC) for injury to his back that 
occurred on 30 July 1998.

     b.  The details of the accident show the applicant reported while training at the 
grenade range, he was struck by a lightning bolt and landed on his back. 

     c.  Further details of the accident show as Soldiers were preparing to board 
transportation to leave the hand grenade range, lightning moved into the area and 
Soldiers were moved to the lightening dispersal area. Lightning struck the dispersal 
area, directly striking one Soldier and indirectly injuring eight others. The applicant was 
near the strike and claims he was thrown onto his back by the strike. He did not go to 
the hospital on that day for the injury.

     d.  On 31 October 1998, the unit commander or advisor signed the form indicating a 
formal LOD investigation was not required and that the injury was determined to have 
been incurred in the LOD.

5.  The applicant’s DA Form 3349 (Physical Profile), DA Form 7652 (Disability 
Evaluation System (DES) Commander’s Performance and Functional Statement), 
Medical Evaluation Board (MEB) Narrative Summary (NARSUM), and DA Form 3947 
(MEB Proceedings) are not in his available records for review and have not been 
provided by the applicant.

6.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows a PEB 
convened on 10 February 1999, where the applicant was found physically unfit with a 
recommended combined rating of 10 percent and that his disposition be separation with 
severance pay for the unfitting condition of chronic muscular low back pain, without 
neurologic abnormality.

7.  Headquarters, U.S. Infantry Center Orders 074-2211, dated 15 March 1999, 
honorably discharged the applicant due to disability with severance pay with a disability 
rating of 10 percent effective 6 April 1999.

8.  The applicant’s DD Form 214 shows he was honorably discharged due to physical 
disability with severance pay effective 6 April 1999 and credited with 10 months and 
3 days of net active service.

9.  The applicant provided 125 pages of VA medical records, all of which have been 
provided to the Board for review, which show in pertinent part the following:

     a.  The applicant has an 80 percent service-connected VA disability rating, effective 
an unknown date for unspecified conditions.

     b.  The applicant’s VA Problem List includes the following:

*	lumbar spondylosis
*	gastritis
*	moderate major depression
*	PTSD
*	hyperlipidemia
*	chronic alcoholism in remission
*	rehabilitation, vocational

10.  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.

11.  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.  

12.  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.

13.  MEDICAL REVIEW:

    a.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents, the Record of Proceedings (ROP), and the applicant's available records in 
the Interactive Personnel Electronic Records Management System (iPERMS), the 
Armed Forces Health Longitudinal Technology Application (AHLTA), the Health Artifacts 
Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV).  The 
applicant stated that he should have been medically retired after having been injured in 
the line of duty during a training accident.  He believes that his separation with 
severance pay was an error.

    b.  21Aug1997 Report of Medical Examination (for enlistment).  A heart murmur was 
found for which cardiology was consulted.  Suspected Scoliosis was ruled out (by x-
ray).  He was ultimately deemed qualified for service with PULHES 111121. 

    c.  The Statement of Medical Examination and Duty Status indicated that the 
applicant reported that he was near a lightning strike, and he was thrown on his back by 
the shock of the strike.  The incident took place at Fort Benning during the period of 
active service on 30Jul1998.

    d.  The 10Feb1999 PEB found the applicant’s Chronic Muscular Low Back Pain, 
Without Neurologic Abnormality condition, unfitting for continued military service.  The 
condition was rated at 10% under VASRD code 5299-5295.  The PEB recommended 
disposition was for the applicant to be separated with severance pay at 10% total.  No 
other conditions were documented on DA Form 199 (PEB Proceedings).  There were no 
in-service treatment records available for review.

(1)	09Aug2004 lumbar and thoracic spine x-rays showed normal vertebral height 
and disc space.  The neural foramina are patent.   No degenerative changes 
were seen.  Impression: No acute disease.  
(2)	09Dec2010 Emergency Room Note.  He described pain in lower back with 
radiating to the left lower extremity at times.  He denied numbness/ tingling or 
loss of bowel/ bladder control.
(3)	15Dec2014 Back DBQ showed forward flexion to 80 degrees (normal is 90 
degrees); and extension to 25 degrees (normal is 30 degrees).  Muscle strength 
was 5/5.  Sensory was normal.  His bilateral straight leg testing was negative.  
There was no radicular pain and no signs or symptoms of radiculopathy.
(4)	JLV search today showed that the applicant has been service connected by the 
VA for Paralysis of Sciatic Nerve (20%); Paralysis of Sciatic Nerve (10%); and 
Lumbosacral or Cervical Strain (10%).

    e.  In his application, the applicant also implied that he wanted the PTSD condition to 
be reviewed for consideration of Army disability compensation.

(1)	18Jan2011 Primary Care Initial Evaluation Note.  The applicant’s PTSD screen 
was positive.
(2)	13Jan2014 Mental Health Outpatient Note.  He was employed in the oil and gas 
industry as air quality inspector.  He served in the Army from 1998 to 1999 in Fort 
Benning GA.  He had a Ranger Contract, and in the course of his training he was 
hit by lightning.  The lightning bolt killed one of the men on his fire team.  The 
applicant was burned and sustained a back injury.  He was discharged from 
service and his subsequent drinking had impacted just about every relationship 
and job.  Diagnostic Impression: Alcohol Use Disorder, severe, in early remission 
in a controlled environment. 
(3)	20Jan2015 Mental Health Discharge Note.  He was being discharged from a 
DCHV (Domiciliary Care for Homeless Veterans) with length of stay of 7 days or 
greater.  During this treatment episode, he achieved employment as manager 
through Mister Car Wash; obtained housing through HUD-VASH program; 
attended groups related to mental health and substance abuse recovery; 
complied with probation requirements; and developed productive leisure activities 
through exercise. 
(4)	18Apr2022 Mental Health Telephone Encounter Note.  It was documented that 
the applicant’s psychological and physical injuries were related to the traumatic 
events of being hit by lightning when on duty outdoors and witnessing his battle 
buddy's charred body, and the injuries of seven other Soldiers.  He experienced 
intense fear, horror, paranoia, and feelings of impending doom.  He was 
assessed to have met DSM-5 criteria for PTSD.
(5)	JLV search today showed that the applicant was service connected by the VA at 
70% for PTSD.

    f.  There were no in-service treatment records available.  There were no 
contemporaneous records in AHLTA, JLV, HAIMS, or in ePEB (Electronic Physical 
evaluation Board).  The applicant was first seen at a VA facility in August 2004, over 5 
years after discharge from service.  Subsequently, there was a 6 year gap in treatment 
records.  Therefore, there was no evidence to support a change (or increase) in rating 
for the lumbar condition.   Based on evidence available to review, there was insufficient 
evidence to support that the applicant had conditions other than the Chronic Muscular 
Low Back Pain condition, which failed medical retention standards of AR 40-501 
chapter 3 at the time of discharge.  There was also no evidence to support that the 
applicant should have received an additional rating(s) for bilateral lower extremity 
radiculopathy or for the PTSD condition.  He was recommended separation with 
severance pay by the PEB at 10%; the 15Mar1999 Orders 074-2211 showed he was 
authorized disability severance pay at 10%; and finally, the DD Form 214 indicated the 
amount received in severance pay by the applicant.  Review of available evidence 
supports that the applicant was not separated with severance pay in error (as opposed 
to being medically retired).  Contemporaneous medical examinations of the back 
condition to assess the severity of the lumbar condition at the time of discharge (and the 
accuracy of the rating) were not available for review.  The PTSD condition was not 
diagnosed until many years after the applicant was discharged from service.  If in-
service medical records become available, this case can be reevaluated; however, at 
this time referral for further medical discharge processing 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 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 advisory the Board concurred with the advising official finding there was 
insufficient evidence to support that the applicant had conditions other than the Chronic 
Muscular Low Back Pain condition, which failed medical retention standards at the time 
of discharge. The Board found no evidence to support that the applicant should have 
received an additional rating(s) for bilateral lower extremity radiculopathy or for the 
PTSD condition. Based on this, the Board determined referral for further medical 
discharge review is not warranted and denied 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, 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.  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 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.

3.  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.

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, 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.

6.  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.

7.  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.

8.  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.  

9.  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.  
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220003579


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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