IN THE CASE OF: BOARD DATE: 25 October 2022 DOCKET NUMBER: AR20220004346 APPLICANT REQUESTS: in effect, the following corrections, * permanent physical disability retirement in lieu of a physical condition, not disability separation * no less than a 30 percent (%) rating (per Veterans Affairs Schedule for Rating Disabilities (VASRD) rate under mental disorders, if the Board does not agree, request the applicant be rated under the guidelines for "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified") * any and all back pay dating back to an appropriate effective date of a medical retirement * correction to his narrative reason for separation to show “medical retirement” * award of the Combat Action Badge (CAB) and Purple Heart * any other relief that is equitable and just, and * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney Supplemental Statement, 19 November 2021 * Tab A - DD Form 214 (Certificate of Release or Discharge from Active Duty) * Tab B - Applicant Declaration, 22 November 2021 * Tab C - Army Personnel Files (includes Permanent Orders 237-5 (Purple Heart), 25 August 2003) * Tab D - Deployment Awards and Miscellaneous Documents * Tab E - Purple Heart Certificate * Tab F - Veterans Affairs (VA) Medical Record * Tab G - VA Ratings * Tab H - Two Letters of Support * Tab I - Leave Earning Statements (LESs) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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’s attorney states the applicant deployed to Iraq in 2003 where he saw combat and was wounded in action (see Tabs B, C, and D). He was awarded the Purple Heart for wounds received in combat (see Tab D). The applicant sustained various injuries and developed, among other conditions, post-traumatic stress disorder (PTSD) while serving his country (see Tabs B through G). a. The applicant was discharged on 19 December 2003 with an honorable characterization of service based on "Physical Condition, Not a Disability." (See Tab A). The Service obviously knew the applicant was unfit for duty as a result of mental health conditions he sustained while deployed to a combat zone in service to his country. The applicant should have been referred for processing under the Integrated Disability Evaluation System (IDES) based on a variety of unfitting conditions. The Service chose to separate him under AR 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-17, which is unconscionable given the facts and circumstances of this case. The Army's failure to medically retire the applicant was contrary to the applicable laws and regulations and was inequitable and unjust. b. The applicant currently has a 100% VA rating for a variety of service-connected conditions, including PTSD (see Tab G). c. The applicant should have been referred to a medical evaluation board (MEB) and subsequently medically retired based on the existence of the following unfitting conditions: PTSD, anxiety, and Traumatic Brain Injury (TBI) (see Tabs B through G), they address each condition below. d. Army Regulation (AR) 40-501 (Standards of Medical Fitness) paragraph 3-1 provides that conditions may render a Soldier unfit for further duty if they - (1) Significantly limit or interfere with the Soldier’s performance of their duties (either basic Soldier skills or MOS [military occupational specialty] specific) as substantiated by the Soldier’s commander or supervisor. (2) Require medication for control that requires frequent monitoring by a physician due to debilitating or serious side effects, medical care, or hospitalization with such frequency as to interfere with the satisfactory performance of duty. (3) Restrict performance of any of the profile functional activities listed in Section 4 of DA Form 3349 (Physical Profile); prevent the performance of all aerobic events of the APFT [Army Physical Fitness Test] (see AR 40–502 [Medical Readiness] for descriptions and instructions on physical profiles); have met a clinical medical retention determination point (MRDP); or have been temporarily profiled for more than 365 days, meeting the administrative MRDP. (4) May compromise or aggravate the Soldier’s health or well-being if they were to remain in the military Service. This may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring. (5) May compromise the health or well-being of other Soldiers (for example, a carrier of communicable disease who poses a health threat to others). (6) May prejudice the best interests of the U.S. Government if the individual were to remain in the military Service.” e. As for his PTSD, AR 40-501 provides the causes for referral to an MEB for trauma-related behavioral health disorders: (1) Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization. (2) Persistence or recurrence of symptoms that interfere with duty performance and necessitate limitation of duty or duty in a protected environment. f. The VA determined the applicant’s PTSD to be service-connected. Based on the VA medical records and VA ratings, there is no question the applicant’s mental health conditions continue to this day (see Tabs B and F). The question, of course, is whether he was unfit for duty while he was still in the service as a result of those conditions. g. The lay and medical evidence supports the conclusion that his PTSD began in 2003 after sustaining a chest wound in combat with the enemy on 7 August 2003 (see TABs B through G). It also indicates his PTSD condition significantly limited and/or interfered with his ability to work and his symptoms proved to be incompatible with his military duties. This evidenced by the DA Form 4856 (Developmental Counseling Form) he received on 17 August 2003 (should be 17 November 2003). The applicant exhibited various PTSD symptoms and the command recognized that he was unfit for duty through their observations that he “exhibited incoherent behavior,” stating he appeared disoriented, was perceived to be “mentally unstable,” (see Tab C). h. The DA Form 4856 he received on 25 October 2003, shows his behavior and personality changed, (see Tab C). i. The “Commanders Request for Mental Health Evaluation" dated 27 October 2003 reflects that the applicant was considered mentally unstable, and that he had to be babysat, and that his personality and behavior had changed, (see Tab C). j. The applicant’s PTSD-related symptoms prevented him from reasonably performing his duties and would have continued to do so had he remained in the military. He was unable to fulfill his work responsibilities and was unable to deploy, as he outlines in his declaration (see Tab B). His condition and the symptoms he experienced undoubtedly posed a medical risk to his health and interfered with his work and social relationships. Finally, this condition would have imposed unreasonable requirements on the military to maintain him as a member given the extent of the ongoing treatment and observation required to address his condition. k. The VASRD provides that a 30% rating is appropriate when "Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events)." This lay and medical evidence indicates that the applicant is entitled to at least a 30% rating for PTSD. l. The attorney contends the evidence supports the finding that the applicant suffered from PTSD during service and his related symptoms were severe enough to warrant both referral to the DES and permanent medial retirement. m. As for his TBI, AR 40-501 provides that the causes for referral to an MEB are as follows for TBI: “If, after adequate treatment, there remain residual symptoms and impairment to such a degree as to meet the definition of a disqualifying medical condition or physical defect as in paragraph 3-1, referral to the DES is required." The medical evidence reflects that the applicant was diagnosed with "late effect of traumatic injury to brain." (See Tab F) The above-listed evidence indicates his TBI was service- connected and that it significantly limited and/or interfered with his ability to work. His PTSD and anxiety symptoms can also be attributed to his TBI injury and were likely exacerbated by his TBI. Each of these render his TBI "unfitting" for further service under AR 40-501, paragraph 3-1. n. The VASRD indicates that emotional and behavioral dysfunction should be rated under mental disorders. As indicated above, the applicant’s emotional and behavioral dysfunction described above, are linked to his TBI, anxiety, and PTSD. Therefore, these symptoms are most appropriated rated under mental disorders, as outlined above. To the extent the Board does not agree, the attorney and the applicant request he be rated under the guidelines for "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." In sum, the evidence supports the finding that the applicant suffered from TBI during his service and that his related symptoms were severe enough to warrant both referral to the IDES and permanent medial retirement. o. As for his injury to his abdominal wall, the VA medical evidence reflects that the applicant was rated at 30% for "residuals, gunshot wound to the chest" under Diagnostic Code 5319 (see Tab G). The lay and medical evidence enclosed at Tabs B through G reflect that the applicant sustained a gunshot wound to the chest while deployed in Iraq. As he explains in his declaration, although he desired to rehabilitate himself physically, he was on crutches for an extended period of time and had few if any stomach muscles left (see Tab B). He could not bend over and certainly could not take or pass an APFT (see Tab B). Despite his severe injuries, he was told if he could wear a Kevlar and shoot a weapon he was deployable (see Tab B). p. Evidence indicates that the applicant’s stomach and abdominal injury was service-connected and that it significantly limited and/or interfered with his ability to work and certainly made him non-deployable. Each of these therefore render his stomach and abdominal injury "unfitting" for further service under AR 40-501, paragraph 3-1. The lay and medical evidence indicates that the applicant was entitled to at least a 30% rating for his abdominal injuries, wherein the VA rated him at 30% (see Tab G). In sum, the evidence supports the finding that the applicant suffered from a stomach and abdominal injury during his service and that his related symptoms were severe enough to warrant both referral to the IDES and permanent medial retirement. 3. The applicant provides a declaration; it states on the night he was shot his unit was informed that they would be participating in a multi-unit, multi-directional raid on several members on the Blacklist (Iraq's Most Wanted Deck of Cards) on the night of 7 August 2003. They arrived at the raid location around 9:20pm and he was placed at a perimeter check point. a. When he received word that the raid was going to be wrapping up soon, a car like many others approached his line of engagement to be recognized and to be moved on. It was a little after curfew, but at times, it could be translators or working people getting home. But in this case, when the car stopped, they turned off all their lights, and sometimes it happens, but he raised his alert level a bit just in case, and they stayed there for about 2 to 3 seconds, then all of a sudden, with their lights off, instead of slowly proceeding, they squealed their tires and gunned it towards him, and he was ready, and all he had to do was raise his rifle to his head and line up and shoot, and that took less than 1 second. At the same time, all the surrounding lights in the area also went dark, it was a complete black out, and they started getting fired upon from all directions facing outward, including the roof tops, but in the short 3 to 5 seconds after they gunned their car towards him, is when it all happened. He got off three rounds on a single shot at their car, and he remembers seeing a few rounds go right by him. He got shot through the side of his vest. b. After he got shot and was on the ground, he did not have immediate coverage, and with bullets flying all around he was really fearful for his life, because a roof top shot could hit him in the head. Later, he was loaded into the medivac, where he was slipping in and out until he got back to Landstuhl. After having emergency surgery in country his surgical scar stretches from his belly button seven inches up to his sternum. His stomach muscles were gutted, and he was not able to get up on his feet for nearly a week and it took several months for him to be able to walk on his own without any assistance; during which time he was on crutches. After his stay in Landstuhl and at Walter Reed, he was granted permission to complete his convalescent leave where his wife was in which was near Fort Carson, so he could get continued treatment. During his convalescent leave and his short time back in Giessen, he was having night terrors and nightmares when he was awake and asleep. He dosed off all the time or passed out from exhaustion, but never felt comfortable going to sleep. He would wake up whenever, usually, due to a night terror, and would sleep through alarms even when people tried to wake him up according to what they told him back in GE. When he was in a car or out in the open, he would always look at roof tops and if he hears popping sounds, it startles him. It took 10 years just to watch and hear normal 4th of July celebrations and other fireworks. c. For many years if he saw anyone that looked like a Middle Eastern person in skin tone, or attire, he would feel anger, scared, and jumpy with a rapid heartbeat as if he were fight or flight, and he wanted to do both at times. He did not feel he could redeploy because he did not want to pull the trigger for what would appear to be for no reason to everyone else which would make him guilty of murder. He expressed that, and they took it as if he wanted to shoot the first Middle Eastern person he saw for revenge. That was not the case, he simply told them that he did not want to be in that situation, and he did not want to be there unarmed. d. Through his discharge he was on crutches and had severely limited mobility. He had hard times getting into and out of bed because it involved using his stomach muscles which was gutted during surgery. Due to the lack of muscles, he felt and experienced uncontrollable bladders, bowel movement, and irritable bowel syndrome (IBS). He is not sure if he was ever officially diagnosed with IBS. His unit wanted to redeploy him without getting him examined. He had passion for being a Soldier and being on the battlefield, but he knew based on his mental and physical state of mind, he was in no condition to contribute to the war. He has a severe grudge towards his Rear Detachment command for making him look like a POS (piece of sh**), that angered him so much. He did not want out of the Army, he wanted to stay in the Rear Detachment to get help and in time redeploy and be a good Soldier, and during that time, do a non- combat arms job, or reclassify. e. When he came back to the Rear Detachment in October 2003, he could barely bend over to pick up trash so he knew he would not be able to complete the requirements to pass an APFT. He was still on crutches moving gingerly, due to his stomach being gutted, and he had little to no stomach muscles. But they said you are deployable if you can wear a Kevlar, shoot a weapon and wear boots. This made him feel really bad because he was taking the cowardly way out by choosing and refusing to redeploy. The Rear Detachment wanted to stack the deck against him and refuse his request for a medical board, since they were forcing him out of the service. The fact that they said he had to be babysat, shows the derogatory light they were shining on him, instead of saying, "Based on the condition of the soldier, we felt it was in the best interest to have a fellow soldier/NCO accompany him to help him through his daily activities." They choose to use every angle and statements to twist around and make him appear as a burden to the unit and the Army. f. For several years he has paid for medical and dental insurance for his family which could have been paid for had he received a medical retirement. His request if approved will assist with health benefits for him and his family. 4. Regrading the applicant’s request to be awarded the Combat Action badge (CAB), the applicant’s request to the ABCMR is premature. Paragraph 2-5, Section II, Army Regulation 15-185 (ABCMR), the regulation under which this Board operates, states that the Board will not consider any application if it determines that you have not exhausted all administrative remedies available to you. There is no evidence that the applicant submitted his request for award of the CAB to the Commander, U.S. Army Human Resources Command, and were denied relief. a. In accordance with Army Regulation 600-8-22 (Military Awards), retroactive award of the CAB is authorized to fully qualified individuals. The wartime command retains wartime awards approval authority for 12 months after redeployment, and can approve award of the CAB for Soldiers who deployed with their command, and qualified for, but did not receive the CAB during the deployment. b. Soldiers redeployed more than 12 months or reassigned to a command other than their wartime command and qualified for the CAB while deployed may request award through command channels to Commander, U.S. Army Human Resources Command (AHRC–PDP–A), 1600 Spearhead Division Avenue, Fort Knox, KY 40122– 5408. Applications for retroactive award to active duty Soldiers and Reserve Component Soldiers will be forwarded through command channels to the first general officer (for endorsement) to HRC for processing. The first general officer in the chain of command of the Soldier recommended for award of the CAB may disapprove the recommendation. All Army National Guard requests, once endorsed, will be submitted to the Director, (ARNG–HRH–A), 111 South George Mason Drive, Arlington, VA 22204 prior to being submitted to HRC. Retirees and veterans should address their applications to HRC for processing. The DA Form 4187 with endorsement by the first general officer is not required. All other criteria must be met. Requests for retroactive award of the CAB will not be made except where evidence of injustice is presented. Submitted request must include justification explaining why the CAB was not awarded in theater. c. Veterans may submit their request for award of the CAB to the Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. Requests must contain: * assignment, attachment, or operational control orders * a copy of your Enlisted/Officer Record Brief or Personnel Qualification Record * a copy of the chain of command endorsement * a one-page narrative description of the qualifying incident * a certified copy of the DD Form 214 * other supporting documentation, including medical records identifying injuries and/or medical care received, operational staff duty logs recording the date of incident, casualty reports, sworn statements, and/or other supporting documents 5. The applicant’s request to add a Purple Heart to his record is supported by sufficient evidence; as a result, this portion of the requests will be addressed in the "ADMINISTRATIVE CORRECTION" section and will not be considered by the Board. 6. In support of his application, the applicant provides Tab C - Army Personnel Files and Tab E - Purple Heart Certificate: a. A DD Form 4 (Enlistment / Reenlistment Document) shows he enlisted in the Regular Army on 14 March 2000. b. An enlisted record brief (ERB), shows he was assigned to: * 155th Service Battery, 3rd Battalion, 29th Field Artillery Regiment, Fort Carson, CO on 28 July 2000 * Headquarters and Headquarters Battery, 3rd Battalion, 29th Field Artillery Regiment, Fort Carson, CO on 3 August 2000 * Service Battery, 3rd Battalion, 29th Field Artillery Regiment, Fort Carson, CO on 21 August 2000 c. A DA Form 1695 (Oath of Extension of Enlistment) shows he extended his 14 March 2000 enlistment of 4 years to a period of 4 years and 11 months on 19 December 2001. d. The ERB shows he was assigned to: * 155th Service Battery, 2nd Battalion, 3rd Field Artillery Regiment, Giessen Depot, GE on 14 January 2002 * Battery A, 155th Support, 2nd Battalion, 3rd Field Artillery Regiment, Giessen Depot, GE on 19 March 2003 * Forward, 2nd Battalion, 3rd Field Artillery Regiment, Giessen Depot, GE on 2 May 2003 e. Permanent Orders 237-5 and DA Form 4960-10 (Purple Heart Certificate), dated 25 August 2003, shows the applicant was awarded a Purple Heart for wounds received as a result of hostile actions on 7 August 2003. f. The ERB shows he was assigned to Rear Detachment, 2nd Battalion, 3rd Field Artillery Regiment, Giessen Depot, GE on 9 September 2003 g. A DA Form 4856 (Developmental Counseling Form) shows the applicant’s first sergeant (1SG) counseled him prior to deployment on 25 October 2003 for medical fitness. In part, it states the applicant was not able to deploy due to physical standards and mental health issues. h. A DA Form 4856 shows the applicant was counseled on 27 October 2003 for failing to report to the 0630hrs accountability formation. i. An Army in Europe Form 40-6A-R (Unit Commander Request for Mental Health Evaluation), dated 27 October 2003, shows his company commander recommended him for a mental health evaluation for the purpose of a chapter 5-17. (1) The behavior report states: * March 2003 and forward the applicant continued to malinger and react as in “Mental Fog,” earning the name “The Big Slow” * after returning to GE in October 2003, he was very confused and disoriented * while deployed the applicant received shrapnel in his chest * he received two company grade Article 15s (unavailable for review) for actions beforehand * currently he was behaving “Mentally Unstable” * Soldiers have to “Baby Sit” the applicant so he can comprehend * he was aversive to good order within unit for supervisors * after his injury, treatment possibly made him addicted to drugs (painkillers) * he divorced while on convalescent leave/hospital in the U.S. due to his personality change (per Soldier statements) (2) Remarks block states: (a) “He has made remarks to effect he will not return to Iraq. If he was to go back he would shout + kill 1st Iraqi’s he meets.” (b) He appeared flushed, disoriented, and got lost on a daily occurrence. He did not have the ability to schedule his own appointments. j. A memorandum, notification of referral for a mental health evaluation, dated 27 October 2003, notified the applicant that he was referred for a mental health evaluation. k. A memorandum for record, (Applicant) Performance Summary, dated 28 October 2003, from Captain (CPT) his previous company commander states: (1) The applicant is a marginal Soldier who has a pattern of misconduct. While assigned to Alpha Battery for 5 months, the applicant received two Company Grade Article 15s. His continued misconduct after the two Article 15s resulted in reduction in rank from specialist (SPC/E-4) to private first class (PFC/E-3). At this time, he shows no potential for promotion. (2) The applicant has the capability to learn new skills and retain information after intensive periods of training and retraining. Fellow Soldiers refer to him as "The Big Slow." His inability to quickly adapt to a new environment forced his section chief to remove him from daily patrols in Baghdad for several weeks until he was confident that the applicant mastered necessary skills. The applicant also required extensive supervision to ensure that he completed assigned tasks to standard. Any lapse in supervision would most likely result in the applicant failing to accomplish his assigned task, as noted on several occasions in the past. (3) On the night of 7 August 2003, the applicant received a gunshot wound to his chest while maintaining security during a raid in Baghdad. While being treated by a medic and combat lifesaver, the applicant became extremely fearful for his life. At one point, he even tried to shield himself with the female medic while his chain of command maintained a security perimeter around him. He was immediately evacuated and returned to the U.S. for further medical treatment. l. A DA Form 4856 shows the applicant’s 1SG counseled him on 28 October 2003 for failure to follow a lawful order or regulation and failure to follow a lawful order of a superior (1SG) after being told to wear his correct rank insignia on his uniforms on 23 October 2003. m. The applicant’s acknowledgement for receipt of the mental health evaluation referral on 7 November 2003. n. A memorandum, (Applicant), dated 12 November 2003, shows the applicant underwent a mental health evaluation at the Hanau Mental Health Clinic. (1) The applicant was diagnosed with an adjustment disorder with mixed anxiety and depressed mood (DSM-IV 309.28). Although the applicant reported some symptoms consistent with a diagnosis of acute stress disorder, he did not meet full criteria at that time. Some of his depressive symptoms appeared to have predated his deployment and also are reactive in nature. (2) The applicant met the retention standards per chapter 3, AR 40-501 and there was no psychiatric disease or defect which warranted disposition through medical channels. (3) The diagnosis as shown above, represents a mental condition not amounting to a disability per AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), but which manifests disturbance of emotional control sufficiently severe that the Soldier's ability to effectively perform military duties was significantly impaired. (4) The applicant was and is mentally responsible, able to distinguish right from wrong and has the mental capacity to understand and to participate in board proceedings. (5) The applicant was psychiatrically cleared for administrative action appropriate by his command. Psychiatric factors indicate the administrative separation under AR 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-17, would be in the best interests of the applicant and the military. o. A DA Form 4856 shows the applicant’s 1SG counseled him on 17 November 2003 to inform him that he was recommended for separation from service under paragraph 5-17 (Mental Condition) for: (1) During deployment counseling the applicant indicated "I feel that I can not [cannot] Deploy due to physical and mental health issues." He exhibited incoherent behavior in managing his appointments for spiritual assistance and both physical and mental medical treatment. The command had to assign two noncommissioned (NCOs) officers to assist him in making appointments and then keeping them. (2) The applicant’s actions caused violation of the uniform code of military justice (UCMJ) on numerous accounts for failure to follow lawful orders, failure to repair (make formations, accountability, and appointments), and making spontaneous statements that are not conductive to good order and discipline that are to the effect: * "If I am sent back to Iraq, I will kill the first Iraqi I see" * demeaning comments about the unit’s command and fellow Soldiers * statement to fact that he divorced from wife while on convalescent leave in U.S., which he later recanted (3) Many times, he appeared flush, disoriented, and would be lost during the day, causing the command to assign an NCO to closely supervise and/or escort him. (4) Previously the applicant displayed a history of UCMJ for malingering and failure to follow lawful orders, which preceded his combat injury, this is documented by his previous commander in a memorandum for record. The Battery command and Soldiers did not trust the applicant due to his instability. (5) The Rear Detachment command perceived the applicant to be mentally unstable and not responsible for his actions, above and beyond any injuries he may have received. Rather than punishing him for his behavior and misconduct they sought expert advice to establish if in fact he was responsible for his own action. (6) On 12 November 2003, Hanau Mental Health Clinic Diplomate American Board of Psychiatry and Neurology, psychiatrically cleared the applicant for any administrative action deemed appropriate by the command. She also determined, psychiatric factors indicate an administrative separation under AR 635-200, paragraph 5-17, would be in the best interest of him and the military. p. A memorandum, notification of separation under AR 635-200, paragraph 5-17, other designated physical or mental conditions, dated 20 November 2003, shows the applicant was notified of the initiated action to separate him for a personality disorder due to being diagnosed with an adjustment disorder with mixed anxiety and depressed mood. His mental condition potentially interferes with the performance of his duties. q. A memorandum, notification of separation under AR 635-200, paragraph 5-17, other designated physical or mental conditions, date unspecified, shows the applicant was advised by consulting counsel of the basis of the contemplated action to separate him for a personality disorder under AR 635-200, paragraph 5-13, and its effects, and the rights available to him on 24 November 2003. He elected not to submit a statement on his own behalf. r. Two memorandums, notification of separation under AR 635-200, paragraph 5- 17, other designated physical or mental conditions, shows his company and battalion commanders recommended him for separation from the U.S. Army with an honorable discharge certificate prior to his expiration of his term of service without being transferred to the Individual Ready Reserve. s. A memorandum, notification of separation under AR 635-200, paragraph 5-17, other designated physical or mental conditions, dated 16 December 2003, shows the separation authority approved the recommendation to separate the applicant with an honorable discharge certificate prior to his expiration of his term of service date. He was not transferred to the Individual Ready Reserve per AR 635-200, paragraph 1-35. And further requirements for rehabilitation were waived per AR 635-200, paragraph 1-16d. t. A DD Form 214 shows he was discharged accordingly on 19 December 2003. He completed 3 years, 9 months and 6 days of net active service during this period. His DD Form 214 shows in: * Block 18 (Remarks) - Service in Iraq from 9 May 2003 to 8 August 20003 (should be 2003) * Block 25 (Separation Authority) - AR 635-200, paragraph 5-17 * Block 26 (Separation Code) - JFV * Block 28 (Narrative Reason for Separation) - Physical Condition, Not a Disability 7. In support of his application, the applicant provides Tab G - VA Ratings: A VA statement dated 8 August 2014; verifies he was granted a combined rating of 100% for the following service-connected disabilities with an unspecified effective date: * 100% for PTSD * 40% for residuals, gunshot wound to the chest * 10% for left knee, retropatellar pain syndrome * 10% for right knee, retropatellar pain syndrome * 10% for tinnitus * 0% for liver injury, residuals of gunshot wound * 0% for hemorrhoids * 0 % for abdominal scar, residuals of surgery for gunshot wound 8. In support of his application, the applicant provides Tab F - VA Medical Record, it shows: * 13 May 2013 - Ophthalmology Surgery - Optometry Polytrauma Follow-Up Note, TBI confirmed by: TBI examination, no history for TBI treatment * 14 May 2013 - late effect of traumatic injury to brain * 14 May 2013 - An ambulatory note, shows Hx TBI currently being evaluated by ophtho (ophthalmology) and TBI clinic * 16 March 2014 - Active problems list, late effect of traumatic injury to brain, knee: arthralgia, pain in joint involving ankle and foot, morbid obesity, refractive errors, HX TBI, chronic HA, Gun shot injury, Hx PTSD, depression, anxiety, adjustment disorder, agitation, ADHD, and Hx Herpes genitalis * 9 December 2014 - applicant already diagnosed with TBI during Operation Iraqi Freedom 9. Lastly, in support of his application, the applicant provides Tab H - Two Letters of Support: a. A memorandum for record, Revised statement on behalf of (Applicant), dated 1 November 2021, from Lieutenant Colonel (LTC) (Retired) the applicant’s previous commander that signed the memorandum above, (Applicant) Performance Summary, dated 28 October 2003. (1) He states upon further review, he believes he signed a document that did not accurately reflect the situation with the applicant. Furthermore, many of the words such as calling him "The Big Slow" was put into a memorandum that was pre-written by the Rear Detachment chain of command. (2) The applicant was one of a limited number of Palletized Load Set heavy truck drivers in 2nd Battalion, 3rd Field Artillery. Despite the wording of the previous memorandum, he was skilled and worked diligently while assigned in Alpha Battery, 2nd Battalion, 3rd Field Artillery. distinctly remembers having a one-on-one conversation with the applicant about enduring the hardships of being assigned to perform an essential mission where there are few others who can lighten the burden. He did so without complaint after their conversation. (3) The truth in the signed memorandum was that he was shot during a night mission along with another Soldier in the battery. knelt at the applicant’s side and provided comfort before he was placed in the ambulance and was eventually evacuated back to GE. The applicant’s reaction and fear that night was no different than what was demonstrated by other Soldiers during subsequent combat deployments. (4) The applicant made mistakes that other junior Soldiers make, but he was by no means not worthy of continuing to serve. LTC believes that in light of what the U.S. Army has learned about mental health, he was not prepared to return to Iraq and should have received additional counseling and support which the Rear Detachment was unable to provide. b. A declaration dated 15 November 2021, from 1SG (Retired) 1SG of Alpha Battery, 2nd Battalion, 3rd Field Artillery from 1 July 2002 - 1 September 2003. He states the applicant was assigned to the battery during this time. (1) Prior to deploying in support of Operation Iraqi Freedom the applicant met all the required training and standards in order to deploy. They deployed in May 2003 to Kuwait in preparation for their follow on mission in Baghdad, Iraq. Once they arrived in Baghdad, Iraq, the applicant performed all of his duties in a professional manner. After the applicant was shot, he was evacuated to a hospital. When he visited the applicant, the applicant was very shaken and concerned, but 1SG reassured him he was going back to the unit in Giessen where he would have time to recover and most likely would not return to Baghdad, Iraq. (2) The applicant was awarded the Purple Heart for his actions during the operation. He should have also received an additional medal, but due to 1SG taking a new position in September, he was not informed if the applicant had received it. (3) Bottom line up front, the applicant performed professionally as a Soldier, he never once received a negative counseling or had a UCMJ action against him during his tenure. 1SG adds that the Rear Detachment 1SG that was left behind in the battalion had a reputation for putting as many Soldiers out of the Army as he could if they could not deploy, regardless of their condition after returning from combat or if they were trying to defer deployment to the combat zone. 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 10, USC, section 1201, provides for the physical disability retirement of a service member who has at least 20 years of service or a disability rating of at least 30%. 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%. 12. 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. 13. 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. 14. Based on the applicant's petition referring to his gunshot wound, PTSD, and TBI the ARBA medical staff provided a medical review for the Board members. See the "MEDICAL REVIEW" section below. 15. 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 a referral to the Disability Evaluation System (DES) for PTSD incurred while on active duty. His requests should be granted. While on security detail in Baghdad, the applicant was shot in the chest on 7 August 2003 and then discharged from the Army for “adjustment disorder” 4 months later. 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 14 March 2000 and was honorably discharged on 19 December 2003 under authority provided by paragraph 5-17 of AR 635-200, Active Duty Enlisted Administrative Separations (1 November 2000): Other designated physical or mental conditions. It shows the former Infantryman served in Iraq from 5 May 2003 thru 8 August 2003 during which he received a Purple Heart. c. Paragraph 5-17a of AR 635-200: Commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to— (1) Chronic airsickness. (2) Chronic seasickness. (3) Enuresis. (4) Sleepwalking. (5) Dyslexia. (6) Severe nightmares. (7) Claustrophobia. (8) Other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the soldier’s ability to effectively perform military duties is significantly impaired. d. There are no contemporaneous encounters in AHLTA. e. From his 12 November 2003 Report of Mental Status Evaluation: (1) “Diagnosis: Adjustment Disorder with Mixed Anxiety and Depressed Mood Although this individual reports some symptoms consistent with a diagnosis of Acute Stress Disorder, he does not meet full criteria at this time. Some of his depressive symptoms appear to have predated his deployment and also are reactive in nature. (2) Findings: (a) This individual meets the retention standards as prescribed in Chapter 3, AR 40-501, and there is no psychiatric disease or defect which warrants disposition through medical channels. (b) The diagnosis as shown above, represents a mental condition not amounting to a disability per AR 635-40, but which manifests disturbance of emotional control sufficiently severe that the soldier's ability to effective! perform military duties is significantly impaired. (c) This individual was and is mentally responsible, able to distinguish right from wrong and has the mental capacity to understand and to participate in board proceedings. (d) The severity of this condition results in significant impairment in the ability of this individual to function in a military environment. He re orts significant improvement in his symptoms when on convalescent leave and would likely decompensate if he redeployed. (e) This condition and the problems presented by this individual are not, in the opinion of the examiner, amenable to hospitalization, transfer, disciplinary action, training, or reclassification to another type of duty within the military. (f) Decision to make further efforts to attempt to rehabilitate this individual into a satisfactory member of the military will depend on this individual's importance to the functioning of the unit and will be deferred to the command. f. The provider notes he may have had some depressive symptoms prior to deployment and those he had now were “reactive in nature.” True, he had been shot in the chest. g. The applicant DID NOT meet medical retention standards. Paragraphs 3-32 and 3-33 of AR 40-501, Standards of Medical Fitness (29 August 2003), address the medical retention standards for mood disorders (e.g., depression) and anxiety disorders (e.g., PTSD) respectively, and are the same: (1) The causes for referral to an MEB are as follows: (a) Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or (b) Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or (c) Persistence or recurrence of symptoms resulting in interference with effective military performance. h. It is clear the applicant failed paragraphs b and c based on this report and that of his commander. In his 20 November 2003 notification to the applicant of the initiation of separation action under paragraph 5-17 of AR 635-200, the commander stated: “Under the provisions of AR 635-200, Chapter 5-17, Other Designated Physical or Mental Conditions, I am initiating action to separate you for Personality Disorder for the following reasons. You have been diagnosed with an adjustment disorder with mixed anxiety and depressed mood. Your mental condition potentially interferes with the performance of your duties.” i. The applicant was never diagnosed with a personality disorder. Had he been so diagnosed, he would have been discharged under paragraph 5-13 of AR 635-200: Separation Because of Personality Disorder. j. As noted above, paragraph 5-17 states discharge under this paragraph is only authorized for “mental conditions not amounting to disability.” Neither mood disorders nor anxiety disorders meet this criterion as noted by paragraphs 3-32: Mood disorders and 3-33: Anxiety, somatoform, or dissociative disorders (which includes PTSD) of AR In addition, paragraph 5-17c of AR 635-200 notes: “Separation processing may not be initiated under this paragraph until the soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records.” k. There is no evidence this occurred. In addition, it appears that only 3 months after he had been shot, the Army providers just through up their hands and said he could not be helped: “This condition and the problems presented by this individual are not, in the opinion of the examiner, amenable to hospitalization, transfer, disciplinary action, training, or reclassification to another type of duty within the military” l. Note there is no mention of actual treatment, e.g., counseling, medication, or group therapy. m. From the applicant’s initial VA PTSD Compensation and Pension evaluation on 4 October 2004 (1) “Veteran sustained a single gunshot AK-47 wound to the chest. According to x-rays there are still metallic bullet fragments anterior to the left hemidiaphragm and to the right lateral soft tissue of the chest. There was some liver laceration. (2) Veteran was working as a guard in central Bagdad in 08/2003 and was stationed in a cross section of two major roads, standing in the center, at a checkpoint, where he was supposed to stop each passing vehicle. A truck ran the checkpoint and fired a round into the veteran's chest. The veteran collapsed and was taken to Kuwait and then to Landstuhl Regional Medical Center where he believes he was hospitalized for eight days. He was then transferred to Walter Reed Army Center for about eight days and then placed on leave until 10/2003. (3) PSYCHIATRIC SYMPTOMS: … He currently wakes up in cold and hot sweats and often does not recall his dreams. He does have nightmares of situations in Iraq. He specifically dreams of the night he was shot, and of killing armed civilians. He has intrusive memories during the day very often ... (4) He often recalls shooting people and has guilt feelings about it. The veteran has visual illusions of bullets going criss cross across his face. He also has panic attacks multiple times per day. These range from mild increases in anxiety to severe feelings of shortness of breath with intrusive memories ... (5) He does not read anything having to do with Iraq. He also avoids trying to recall any memories if possible. Veteran is extremely anxious when he comes to two-way roads. He often feels down over being injured. His self- esteem has suffered from his injury as he often wonders how he could have avoided it. He criticizes himself, calling himself stupid, and not street smart. Veteran often refers to himself as a ‘dummy.’ (6) Veterans has frequent intrusive memories in slow motion of the moment that he was shot. He can recall that he was at a four-way intersection and at the center directing traffic, and that he noticed that the truck turning toward him had their lights off and were headed straight toward him. (7) Veteran recalls feeling that he was going to have to engage the truck, and then remembers seeing a bullet coming toward him and feeling that he was paralyzed. He remembers feeling that he tried to turn slightly. Veteran's helmet was hit, and he recalls that he suddenly couldn't breathe. Veteran remembers lying in the middle of the street and feeling that no one was helping him. He remembers never hearing any fire from his own trucks behind him. He thought he was dead secondary to the large fire fight which broke out later. (8) This is a 23-year-old Caucasian man, who received the Purple Heart for a gunshot wound to the chest, sustained in combat duty in Bagdad, in 08/2003. (9) He has not past psychiatric history, and no sophistication with regard to his symptoms. His current symptoms are consistent with posttraumatic stress disorder of a moderate to severe degree. Veteran has vivid recurrent intrusive memories and nightmares of when he was shot and recurrent severe panic attacks.” n. Review of his records in JLV shows the applicant was granted a service- connected disability rating of 100% for PTSD and a 30% disability rating for “abdominal muscle damage.” Both ratings were effective 20 December 2003, the day after his discharge from the Army. o. The applicant clearly had a service incurred mental health condition which was the cause of his career termination. Paragraph E3.P3.5.1 of Department of Defense Instruction 1332.38 Subject: Physical Disability Evaluation (14 November 1996) states: “The DES compensates disabilities when they cause or contribute to career termination.” p. Paragraph 7-1 of AR 40-400, Patient Administration, states in part: “If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer (PEBLO).” Note there is no mention of component or duty status. Paragraph 7-5b(5) is more direct for this case, stating that one of the situations which requires MEB consideration is “an RC member not on AD who requires evaluation because of a condition that may render him or her unfit for further duty.” q. Paragraph 2-9c of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990), identifies the errors made by his command: “The unit commander will – c. Refer a soldier to the servicing MTF for medical evaluation when the soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.” r. It is the strong opinion of the ARBA Medical Advisor that a referral of his case to the Disability Evaluation System is clearly warranted. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board noted that the applicant was discharged on 19 December 2003 in accordance with AR 635-200, paragraph 5-17, due to a Physical Condition, Not a Disability. The Board concurred with the medical advisory opinion finding that the applicant had a service incurred mental health condition which was the cause of his career termination. The disability evaluation system compensates disabilities when they cause or contribute to career termination. When a Soldier does not meet retention standards, an MEB is mandatory. One of the situations which requires MEB consideration is when a Reserve Component member not on active duty who requires evaluation because of a condition that may render him or her unfit for further duty. The Board agreed that permanent physical disability retirement, assignment of a rating, and any back pay is premature, before the applicant’s case is referred to the Disability Evaluation System is clearly warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. In addition to the correction addressed in Administrative Note(s) below, the Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Legacy Disability Evaluation System (DES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his type of discharge without evaluation under the IDES. 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. ADMINISTRATIVE NOTE(S): The applicant is authorized correction of his DD Form 214 without Board action to show: * Purple Heart * Iraq Campaign Medal with two bronze stars * Service in Iraq from 9 May 2003 to 8 August 2003 instead of 9 May 2003 to 8 August 20003 REFERENCES: 1. Title 10, USC, 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 15–185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. a. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. b. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. AR 40-501 (Standards of Medical Fitness), in effect at the time, provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides various medical conditions and physical defects which may render a soldier unfit for further military service and which fall below the standards required for all enlisted Soldiers of the active Army. a. Soldiers with conditions listed in Chapter 3, who do not meet the required medical standards will be evaluated by an MEB and will be referred to a physical evaluation board (PEB) with the following caveat: Physicians who identify Soldiers with medical conditions listed in chapter 3 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. Many of the conditions listed in chapter 3 (for example, arthritis in paragraph 3-14b) fall below retention standards only if the condition has precluded or prevented successful performance of duty. b. Possession of one or more of the conditions listed in chapter 3 does not mean automatic retirement or separation from service. Physicians are responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB. c. Paragraph 3-36 (Adjustment Disorder), states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability but may be the basis for administrative separation if recurrent and causing interference with military duty. 4. AR 40-501 (Standards of Medical Fitness), currently in effect, states: Chapter 3 lists the various disqualifying medical conditions and/or physical defects which may render a Soldier unfit for further military service and which fall below the standards required for all enlisted Soldiers of the Regular Army, Army Reserve National Guard/ Army Reserve National Guard of the U.S., and U.S. Army Reserve. The medical conditions and/or physical defects, individually or in combination, are those, that have met the clinical or administrative medical retention decision point - a. Significantly limit or interfere with the Soldier’s performance of their duties (either basic Soldier skills or MOS specific) as substantiated by the Soldier’s commander or supervisor. b. Require medication for control that requires frequent monitoring by a physician due to debilitating or serious side effects, medical care, or hospitalization with such frequency as to interfere with the satisfactory performance of duty. c. Restrict performance of any of the profile functional activities listed in Section 4 of DA Form 3349 (Physical Profile); prevent the performance of all aerobic events of the Army Physical Fitness Test (see AR 40–502 (Medical Readiness) for descriptions and instructions on physical profiles); have met a clinical medical retention determination point (MRDP); or have been temporarily profiled for more than 365 days, meeting the administrative MRDP. d. May compromise or aggravate the Soldier’s health or well-being if they were to remain in the military Service. This may involve dependence on certain medications, appliances, severe dietary restrictions, frequent special treatments, or a requirement for frequent clinical monitoring. e. May compromise the health or well-being of other Soldiers (for example, a carrier of communicable disease who poses a health threat to others). f. May prejudice the best interests of the U.S. Government if the individual were to remain in the military Service. 6. AR 600-8-22, effective 5 March 2019, states award of the CAB is not automatic and will not be awarded solely based on award of the Purple Heart. Retroactive awards of the CAB are not authorized prior to 18 September 2001. Award of the CAB is authorized for the following operations (award for qualifying service in any previous conflict is not authorized): Afghanistan (Operation Enduring Freedom, 18 September 2001 to 31 December 2014; Operation Freedom's Sentinel, 1 January 2015 to a date to be determined). Additionally, it states requests for retroactive award of the CAB will not be made except where evidence of an injustice is presented. Evidence of an injustice must be included when submitting a retroactive award request including why the badge was not awarded in theater by the appropriate approval authority. When awarded, the CAB will be announced by permanent orders. 7. AR 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), states, list awards and decorations for all periods of service in the priority sequence specified in AR 600-8- 22. Each entry will be verified by the Soldier’s records. Do not use abbreviations. 8. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System according to the provisions of chapter 61, Title 10, USC (10 USC 61) and Department of Defense Directive (DODD) 1332.18 (DES). It 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. 9. AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 5 prescribed policy for separation for convenience of the Government. Paragraph 5-17a states commanders specified in paragraph 1-19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5-11 (Separation of Personnel Who Did Not Meet Procurement Medical Fitness Standards) or paragraph 5-13 (Separation Because of Personality Disorder) that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to: * chronic airsickness * chronic seasickness * enuresis * sleepwalking * dyslexia * severe nightmares * claustrophobia * other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired b. When a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation p in accordance with AR 40-501. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. c. Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. d. Nothing in this paragraph precludes separation of a Soldier having a condition as described in paragraph 5-17a under any other provision of this regulation. 10. Title 10, USC, 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 DES and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DODD 1332.18 and AR 635-40. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with 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 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. 11. Title 10, USC, section 1201, provides for the physical disability retirement of a service member who has at least 20 years of service or a disability rating of at least 30%. 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%. 12. Title 10, USC, 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 ABCMR applicants (and/or their counsel) prior to adjudication. 13. Title 38, USC, 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. 14. Title 38, USC, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004346 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1