IN THE CASE OF: 

		BOARD DATE: 11 April 2023

		DOCKET NUMBER: AR20220004956


APPLICANT REQUESTS: 

*	reconsideration of his previous request for physical disability retirement in lieu of 
separation with severance pay
*	personal appearance before the Board

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

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Summary of benefits letter, 30 May 2022
*	MRI Cervical Spine (my HealtheVet)
*	Cervical Spine (Duplicate)
*	Digital Image (My HealtheVet)
*	Veterans Affairs (VA) Medical Records 2021
*	Appeal Cervical Spine - Status (printout)
*	Appeal - Issues (printout)
*	VA Appeal - Details (printout)
*	VA Disability (eBenefits printout)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number AR20200000039 on 29 July 2021.

2.  The applicant states he was diagnosed with post-traumatic stress disorder (PTSD) 
and traumatic brain injury (TBI) with Cervical Spine injury for which he received a Purple 
Heart Medal. Ongoing medical care from that time to his time of discharge in 2016 
reflects that his pain prevented him from service. Pain continued in late 2016 after 
discharge into 2017 which is supported by VA documentation for cervical spine issues. 
Which is also reflected in rating increase for cervical spine in 2017. Although surgery 
was performed, pain continues with degenerative disc issues and narrowing of disc 
above and below surgical sight. VA records confirm the same as he is now 100% 
Permanent and Total (P&T) service connected; and continue a medical regiment to 
make pain manageable. The pain continues to persist making it increasingly difficult to 
maintain employment because both difficulty sitting and standing, migraines from neck 
pain. He continues to exhaust all means of treatment per the VA as neck issues may 
lead to another surgery. In addition, not being medically discharged excludes him from 
obtaining maximum care through both Tricare via Brooke Army Medical Center, 
excludes him from Purple Heart benefits, which he has earned, and most of all without 
the record being corrected to reflect: Officer-Retirement-Permanent, it fails to recognize 
what the VA has placed in the record via his status first as 100% granted in 2020, then 
with the final designation of P&T granted in 2021. Medical records reflect ongoing 
medical treatment for this issue since 2017, even as the VA Disability Board recognized 
the error in not recognizing PTSD and TBI. The step of correcting his military record will 
be the final correction needed to properly reflect his service, extent of injuring and need 
for further treatment.

3.  The applicant served in the U.S. Navy from 23 March 2005 to 2 January 2008.

4.  He was appointed as a commissioned officer and entered active duty on 6 January 
2008. He completed the Chaplain Basic Officer Leader Course on 4 April 2008. He 
served in a variety of assignments including Hawaii and Iraq.

5.  On 8 April 2016, he underwent a Compensation and Pension (C&P) evaluation at the 
VA, after having been referred to the Integrated Disability Evaluation System (IDES) for 
cervical fusion and cervical spondylosis.

6.  On 9 May 2016, a medical evaluation board (MEB) convened and after consideration 
of clinical records, laboratory findings, and physical examinations, the MEB found that 
the applicant had the medically unacceptable condition of Cervical spondylosis and 
cervical fusion; in accordance with Army Regulation (AR) 40-501 (Standards of Medical 
Fitness), paragraph 3-39h - does not meet medical. He also had the following medically 
acceptable conditions that met retention standards:

*	Right Trichiasis without entropion
*	Dry eye syndrome, status post PRK (Not a VA diagnosis)
*	Bilateral Conjunctivitis, Chronic allergic
*	H/O (unknown) Tinnitus
*	Chronic post-traumatic headache
*	Lumbar spondylosis
*	Scoliosis. (Not a VA diagnosis)
*	Vitamin D deficiency (Not a VA diagnosis)
*	OSA (obstructive sleep apnea)
*	Bilateral pes planus
*	GERD (Gastroesophageal reflux disease) (and esophageal spasm (associated 
with GERD) (VA diagnosis)
*	TBI
*	Hyperlipidemia (Not a VA diagnosis)
*	Mild Right carpal tunnel syndrome
*	Right TMJ (temporomandibular joint)
*	Latrogenic infertility status post vasectomy and vasovasostomy
*	Right ankle sprain
*	Right Unequal Leg Length
*	Allergic rhinitis (Not a VA diagnosis)
*	Left ulnar neuropathy
*	Vertigo attributable to TBI
*	Bilateral calcaneus bursitis

7.  The MEB recommended referral to a physical evaluation board (PEB). The applicant 
was counseled but did not agree with the MEB’s findings and recommendation. He 
submitted a rebuttal. 

	a.  In his rebuttal, he disagreed that the following conditions met retention standards: 
Diagnosis #7 Lumbar spondylosis; Diagnosis #11 bilateral pes planus, and Diagnosis 
#15 and 21 are mild right carpal tunnel syndrome and left ulnar neuropathy. He also 
indicated that the MEB/Narrative Summary did not address the left knee issues causes 
by the leg length discrepancy created by his scoliosis.

	b.  The MEB reviewed his submission and after a review, the MEB found the 
preponderance of the evidence did not support a change in the assessment of those 
conditions that met retention standards or to the alleged knee condition.

8.  On 22 April 2016, the applicant was issued a physical profile (permanent) for chronic 
neck pain, chronic mid-low back pain, and sleep problems.

9.  On 9 June 2016, an informal PEB convened and found the applicant's condition 
(Cervical spondylosis and cervical fusion) unfitting. The PEB accepted the VA proposed 
rating of 10% for this unfitting condition, and recommended his disposition be 
separation with entitlement to severance pay if otherwise qualified. The PEB noted that:

	a.  The applicant reported onset of condition in 2009 as a result of a motor vehicle 
accident while on temporary duty to Virginia. The condition worsened when a 
mortar/rocket detonation blew him from his chair while stationed in Iraq in 2011. He has 
been awarded the Purple Heart and the Combat Action Badge. Reasonable 
performance in his area of concentration requires him to perform certain activities. He is 
unfit because this condition prevents him from being able to perform required activities 
that includes walking for distances up to a mile and standing/crouching for prolonged 
periods in completion of his assigned AOC (56A, Chaplain).

	b.  The PEB considered his other conditions. The PEB noted he is fit for the 
following conditions MEB Dx 2-23 (right trichiasis without entropion; dry eye syndrome, 
status post PRK; bilateral conjunctivitis, chronic allergic; history of tinnitus; chronic 
posttraumatic headache; lumbar spondylosis; scoliosis; vitamin D deficiency; obstructive 
sleep apnea; bilateral pes planus; GERD and esophageal spasm; traumatic brain injury; 
hyperlipidemia; mild right carpal tunnel syndrome; right TMJ; iatrogenic infertility status 
post vasectomy and vasovasostomy; right ankle sprain; right unequal leg length; allergic 
rhinitis; left ulnar neuropathy; vertigo attributable to traumatic brain injury; and bilateral 
calcaneus bursitis). In full consideration of DODI 1332.18, Enc. 3, App. 2, to include 
combined, overall effect, the conditions are not unfitting because the MEB indicates 
these conditions meet retention standards; does not indicate that any of these 
conditions cause profile limitations (functional activities a-h); and does not indicate that 
performance issues, if any, are due to these conditions.

	c.  This case was adjudicated as part of the Integrated Disability Evaluation System 
(IDES). As documented in the Department of Veterans Affairs (DVA) memorandum 
dated 2 June 2016, the DVA determined the specific VASRD code(s) to describe the 
Soldier's condition(s). The PEB determined the disposition recommendation based on 
the proposed DVA disability rating(s) and in accord with applicable statutes and 
regulations.

	d.  It is noted that the officer's disability rating is less than 30%. Soldiers with a 
disability rating of less than 30%, and with less than 20 years of service as computed 
under 10 USC 1208 (active plus RC equivalent service), require separation from service 
with disability severance pay. Disability severance pay, as changed by the National 
Defense Authorization Act of Fiscal Year 2008, is computed by multiplying monthly 
basic pay for two months by the number of combined years (but not over 19) of active 
service and inactive duty points (to include membership points). The number of years 
for purposes of the calculation is not less than 6 years if the disability was determined to 
have been incurred in the line of duty in a combat zone or incurred during the 
performance of duty in combat-related operations, and no less than 3 years for all other 
Soldiers.

	e.  The applicant was counseled and concurred with the PEB's finding and 
recommendation and waived his right to formal hearing of his case. He also indicated 
that he did not want a reconsideration of his VA rating.

10.  The applicant was honorably discharged from active duty on 19 September 2016. 
His DD Form 214 shows he was discharged in accordance with chapter 4 of AR 635-40 
(Physical Evaluation for Retention, Retirement, or Separation), with entitlement to 
severance pay ($96,840.90). Block 27 (Separation Code) shows JEA and Block 28 
(Narrative Reason for Separation) of his DD Form 214 shows the entry "Disability, 
Severance Pay, Combat Related (Enhanced)."

11.  In his previous request (AR20200000039) on 29 July 2021, after reviewing the 
application and all supporting documents, the Board determined relief was not 
warranted. Based upon the available documentation and the findings of the medical 
advisor, the Board concluded there was insufficient evidence of an error or injustice 
which would warrant a change to the applicant’s narrative reason for separation.

12.  The applicant provides:

	a.  Summary of benefits letter, 30 May 2022, which shows he is P&T 100% 
combined service-connected disabled effective 1 December 2021.

	b.  MRI Cervical Spine (my HealtheVet) documents in support of his claim.

	c.  Digital Image (My HealtheVet) documents in support of his claim.

	d.  VA Medical Records 2021 (54 pages) in support of his claim with highlighted 
sections related to his history of cervical fusion and back pain.

	e.  Appeal Cervical Spine - Status (printout) which shows his VA claim decision was 
made on 30 September 2017. He submitted a notice of disagreement on 21 March 
2017. He opted into the rapid appeals modernization program on 8 August 2018.

	f.  Appeal - Issues (printout) which shows withdrawn due to increased rating, 
degenerative arthritis of the spine.

	g.  VA Appeal - Details (printout) he claimed cervical spondylosis with cervical fusion 
(claimed as cervical disc disease) (Increase) received 30 July 2018.

	h.  VA Disability (eBenefits printout) which shows his disabilities and percentages.

13.  The Army rates only conditions determined to be physically unfitting at the time of 
discharge, which disqualify the Soldier from further military service. The Army disability 
rating is to compensate the individual for the loss of a military career. The VA does not 
have authority or responsibility for determining physical fitness for military service. The 
VA may compensate the individual for loss of civilian employability.

14.  Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation 
for disabilities which were incurred in or aggravated by active military service. However, 
an award of a VA rating does not establish an error or injustice on the part of the Army.

15.  Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards 
disability ratings to veterans for service-connected conditions, including those conditions 
detected after discharge. As a result, the DVA, operating under different policies, may 
award a disability rating where the Army did not find the member to be unfit to perform 
his duties. Unlike the Army, the DVA can evaluate a veteran throughout his or her 
lifetime, adjusting the percentage of disability based upon that agency's examinations 
and findings.

16.  In reaching its determination, the Board can consider the applicant’s petition and 
his service record in accordance with the published equity, injustice, or clemency 
determination guidance.

17.  MEDICAL REVIEW:

    a.  The Army Review Boards Agency (ARBA) Medical Advisor was asked to review 
this case. Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and/or the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations: 
    b.  The applicant has applied to the ABCMR requesting a reconsideration of their 
previous denial of his request to have additional medical conditions be determined 
unfitting for continued military service with a subsequent increase in his military 
disability rating and change in his current disability separation disposition from 
separated with disability severance pay to permanent retirement for physical disability.  
The applicant states in part:  “I was diagnosed with PTSD and TBI w/Cervical Spine 
injury for which I received a Purple Heart Medal.  Ongoing medical care from that time 
to my time of discharge in 2016 reflects that my pain prevented me from service.  Pain 
continued in late 2016 after discharge in to 2017 which is supported by VA 
documentation for cervical spine issues.  Which is also reflected in rating increase for 
cervical spine in 2017.  Although surgery was performed, pain continues with 
degenerative disc issues and narrowing of disc above and below surgical sight. VA 
records confirm the same as I am now 100% P&T {permanent and total} Service 
Connected; and continue a medical regiment to make pain manageable.”
    c.  The Record of Proceedings details the applicant’s service and the circumstances 
of the case.  The DD 214 for the period of Service under consideration shows he 
entered the regular Army on 6 January 2008 and was separated with $96,840.90 of 
disability severance pay on 19 September 2016 under provisions provided in Chapter 4 
of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 
2012).  
    d.  This request was previously denied in full on 29 July 2021 (AR20200000039).  
Rather than repeat their findings here, the board is referred to the record of proceedings 
and medical advisory opinion for that case.  This review will concentrate on the new 
evidence submitted by the applicant.
    e.  Additional documentation in this case consists of recent VA documentation 
showing there has been progression of his cervical spine pain/condition; the applicant’s 
combined service-connected disability rating is 100%; and that his rating is unchanged 
from 31 May 2019.
    f.  The applicant notes his TBI and PTSD in his request.  Review of his AHLTA 
encounters show he was treated for TBI in 2011.  From the initial neurology encounter: 
“35-year-old USA Chaplain encountered a blast less than 10 meters from his CHU on 
22 Jan 2011.  Was knocked out of his chair & reports slight memory loss of couple 
minutes after blast ... Pt reporting continued symptoms, frontal headaches w/ 
photophobia, intermittent vertigo, occasional vertigo, and decreased energy.
    g.  The applicant was treated for his TBI by optometry, speech therapy, and physical 
therapy.  He was released without restrictions and the Brain Injury Center closed his 
case on 14 June 2012.  There are no additional TBI related encounters.
    h.  The TBI was addressed by the medical evaluation board and the physical 
evaluation board, with their findings of meets medical retention standards and not 
unfitting for service respectively.  
    i.  As for his PTSD, this was diagnosed by the VA after his discharge from the Army.
    j.  AHLTA shows the applicant was seen at the theater clinic on four occasions 
between 24 December 2010 and 29 January 2011 after self-referring for stress.  At the 
first visit, the provider diagnosed him occupational problem, opining: Pt {patient} 
presents with symptoms of stress related to occupational demands. Pt admitted to 
difficulties in setting boundaries for himself and feels that he is often pulled in many 
directions.  This lack of self-protection is likely contributing to pt’s increased stress and 
periods of increased heart rate.  He does not currently meet criteria for a mood or 
anxiety disorder.  Will continue to explore pt’s symptoms further in upcoming sessions.
    k.  His diagnosis remained “Occupational problem” at his final visit on 29 January 
2011 after which the provider opined: “Pt is currently experiencing increased 
occupational difficulties as a result of his recent involvement in an IDF {indirect fire} 
attack.  Pt is struggling with feelings of anger that he has not been able to adequately 
express. He does not currently meet criteria for a mood or anxiety disorder.”
    l.  There were no additional mental health encounters.
    m.  The applicant claimed anxiety on of his separate Statement in Support of Claim 
(VA form 21-4138).  After the VA provider completed the applicant’s Mental Disorders 
(other than PTSD and Eating Disorders) Disability Benefits Questionnaire and 
examination, he stated the applicant did not have a “mental health disorder.”  There is 
no mental health disorder noted in the MEB narrative summary or the Medical 
Evaluation Board Proceedings (DA Form 3947).  The 2 June 2016 VA ratings decision 
for his Integrated Disability Evaluation System (IDES) processing states “ANXIETY: 
Proposed DES Not Service Connected, No Diagnosis.”
    n.  There is no significant probative evidence the applicant had any additional medical 
condition(s) which would have failed the medical retention standards of chapter 3 of AR 
40-501, Standards of Medical Fitness, prior to his discharge; or which prevented the 
applicant from being able to reasonably perform the duties of his office, grade, rank, or 
rating prior to his discharge. 

    o.  Review of his records in JLV shows there has been no increase in the cervical 
spine 10% disability rating he received while in the IDES.  It also shows he has been 
awarded multiple VA service-connected disability ratings, including ratings for PTSD, 
traumatic brain disease, and migraine headaches.  However, the DES only 
compensates an individual for service incurred medical condition(s) which have been 
determined to disqualify him or her from further military service.  The DES has neither 
the role nor the authority to compensate service members for anticipated future severity 
or potential complications of conditions which were incurred or permanently aggravated 
during their military service; or which did not cause or contribute to the termination of 
their military career.  These roles and authorities are granted by Congress to the 
Department of Veterans Affairs and executed under a different set of laws. It is the 
opinion of the ARBA Medical Advisor that neither an increase in his military disability 
rating nor a referral of his case back to the DES is warranted.     

BOARD DISCUSSION:

1.  The Board determined 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 not warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered. The 
evidence of record shows an informal PEB convened and found the applicant's 
condition (Cervical spondylosis and cervical fusion) unfitting. The PEB accepted the VA 
proposed rating of 10% for this unfitting condition, and recommended his disposition be 
separation with entitlement to severance pay. He was counseled and concurred with the 
PEB's finding and recommendation and waived his right to formal hearing of his case. 
He also indicated that he did not want a reconsideration of his VA rating. The Board 
reviewed and agreed with the medical advisor’s finding that there is no significant 
probative evidence the applicant had any additional medical condition(s) which would 
have failed the medical retention standards of chapter 3 of AR 40-501, prior to his 
discharge; or which prevented the applicant from being able to reasonably perform the 
duties of his office, grade, rank, or rating prior to his discharge. Based on a 
preponderance of evidence, the Board determined that the disability rating percentage 
the applicant received upon separation was not in error or unjust.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice. Therefore, the Board determined the overall merits of this case are insufficient 
as a basis to amend the decision of the ABCMR set forth in Docket Number 
AR2020000039 on 29 July 2021.

	 
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.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right 
to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal 
hearing whenever justice requires.

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 (Physical Evaluation for Retention, Retirements, or 
Separation) establishes the Army Disability Evaluation System and sets forth policies, 
responsibilities, and procedures that apply in determining whether a Soldier is unfit 
because of physical disability to reasonably perform the duties of his office, grade, rank, 
or rating. Only the unfitting conditions or defects and those which contribute to unfitness 
will be considered in arriving at the rated degree of incapacity warranting retirement or 
separation for disability.

	a.  Disability compensation is not an entitlement acquired by reason of service-
incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted 
and who can no longer continue to reasonably perform because of a physical disability 
incurred or aggravated in military service.

	b.  Soldiers who sustain or aggravate physically-unfitting disabilities must meet the 
following line-of-duty criteria to be eligible to receive retirement and severance pay 
benefits:

		(1)  The disability must have been incurred or aggravated while the Soldier was 
entitled to basic pay or as the proximate cause of performing active duty or inactive duty 
training.

		(2)  The disability must not have resulted from the Soldier's intentional 
misconduct or willful neglect and must not have been incurred during a period of 
unauthorized absence.

     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.  On 3 September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical 
considerations, and mitigating factors, when taking action on applications from former 
service members administratively discharged under other than honorable conditions, 
and who have been diagnosed with PTSD by a competent mental health professional 
representing a civilian healthcare provider in order to determine if it would be 
appropriate to upgrade the characterization of the applicant's service.

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; sexual harassment. Boards were directed 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. The guidance 
further describes evidence sources and criteria and requires Boards to consider the 
conditions or experiences presented in evidence as potential mitigation for that 
misconduct which led to the discharge.

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 type of court-martial. 
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice. This guidance does not mandate 
relief, but rather provides standards and principles to guide Boards in application of their 
equitable relief authority. In determining whether to grant relief based on 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. Changes to the 
narrative reason for discharge and/or an upgraded character of service granted solely 
on equity, injustice, or clemency grounds normally should not result in separation pay, 
retroactive promotions, and payment of past medical expenses or similar benefits that 
might have been received if the original discharge had been for the revised reason or 
had the upgraded service characterization.

10.  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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220004956


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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