IN THE CASE OF: 

		BOARD DATE: 11 April 2023

		DOCKET NUMBER: AR20220005087


APPLICANT REQUESTS: correction of his records to show he was retired for physical 
disability instead of discharged with severance pay.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
Code, section 1552(b); however, the Army Board for Correction of Military Records 
(ABCMR) conducted a substantive review of this case and determined it is in the 
interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states, in effect, he is requesting the correctio in order to qualify for the 
benefits associated with a medical retirement. 

3.  The applicant enlisted in the Regular Army on 2 May 1985.

4.  On 11 December 1985, a Medical Evaluation Board (MEB) diagnosed the applicant 
with:

*	diagnosis 1: recurrent right shoulder instability following right anterior shoulder 
reconstruction 18 months ago
*	diagnosis 2: mild left shoulder instability following left anterior shoulder 
reconstruction five years ago

5.  The MEB recommended the applicant's referral to a Physical Evaluation Board 
(PEB). The applicant agreed with the MEB's findings and recommendations.

6.  On 26 December 1995, a PEB found the applicant unfit for further military service 
due to recurrent right shoulder instability following right anterior shoulder reconstruction 
18 months ago. The PEB recommended a 20% disability rating and the applicant's 
separation with severance pay. The PEB found the applicant's condition of mild left 
shoulder instability following left anterior shoulder reconstruction five years ago (MEB 
diagnosis 2) not unfitting and therefore no rated.

7.  On 30 January 1996, the applicant concurred with the PEB's findings and 
recommendations and waived a formal hearing of his case.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) 
shows he was discharged on 16 April 1996 under the provisions of Army 
Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation), 
chapter 4, by reason of disability, severance pay.

9.  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 change in his disability 
discharge disposition from separated with severance pay to permanent retirement for 
physical disability.  
    c.  The Record of Proceedings details the applicant’s military service and the 
circumstances of the case.  His DD 214 for the period of Service under consideration 
shows he entered the regular Army on 2 May 1985 and was separated with $35,026.20 
of disability severance pay on 16 April 1996 under provisions provided in paragraph 4-
24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 
September 1990). 

    d.  On 11 December 1985, a medical evaluation board (MEB) found his “Recurrent 
right shoulder instability following right anterior shoulder reconstruction 18 months ago” 
and his “Mild left shoulder instability following left anterior shoulder reconstruction five 
years ago” to fail the medical retention standards in paragraph 3-12c of AR 40-501, 
Standards of Medical Fitness.  
    e.  Excerpts from the MEB narrative summary:
“…Since this surgery, the patient has had persistent pain and stiffness in the right 
shoulder.  He also feels symptoms of apprehension with the arm in external 
rotation and abduction.  He has had multiple episodes of partial subluxation of 
the right shoulder with the arm in external rotation and abduction since surgery. 
He currently cannot do pushups, sit-ups, lift greater than 20 pounds, perform any 
type of strenuous work with the upper body, dig holes, wear a rucksack, use a 
hammer, or perform his job as a combat engineer.”
PHYSICAL EXAMINATION: … Examination of the right shoulder reveals a well-
healed 10 cm anterior longitudinal incision.  There was tenderness about the 
incision on deep palpation. Passive range of motion of the right shoulder is as 
follows: flexion 150 degrees, external rotation with the arm at the side 20 
degrees, abduction 150 degrees, internal rotation to T8. Range of motion of the 
left shoulder is as follows: flexion 180 degrees, external rotation with the arm at 
the side 70 degrees, abduction 180 degrees, internal rotation to T7. 
Right shoulder relocation test is positive, right shoulder apprehension test is 
positive, right shoulder sulcus sign is positive. Left shoulder apprehension test is 
mildly positive. Left shoulder sulcus sign is also positive. Motor examination of 
the right and left shoulder reveals 5+/5 motor strength in abduction, external 
rotation and internal rotation.”
    f.  On 12 December 1995, the applicant agreed with the board’s findings and 
recommendation and his case was forwarded to a physical evaluation board (PEB) for 
adjudication.  His Physical Profile (DA Form 3349) dated 11 December 1995 lists “Mild 
left shoulder instability post-surgery; Right shoulder pain post-surgery” as his only 
profiled medical conditions.   
    g.  On 26 December 1995, the applicant’s informal PEB found his right shoulder 
condition to be the sole unfitting medical condition for continued service, and they found 
his left shoulder condition to not be unfitting for continued service.
    h.  Using the VA Schedule for Rating Disabilities (VASRD), the PEB derived and 
applied a 20% disability rating to this condition and recommended the applicant be 
separated with disability severance pay.  On 30 January 1996, after being counseled on 
the board’s findings and recommendation by his PEB liaison officer, the applicant 
concurred with the PEB and waived his write to a formal hearing.  
    i.  The orthopedic surgeon’s evaluation showed the left shoulder had full range of 
motion and was not as symptomatic as the right.   Paragraph 3-1 of AR 635-40, 
Physical Evaluation for Retention, Retirement, or Separation (1 September 1990) 
states:
“The mere presence of an impairment does not, of itself, justify a finding of 
unfitness because of physical disability.  In each case, it is necessary to compare 
the nature and degree of physical disability present with the requirements of the 
duties the Soldier reasonably may be expected to perform because of his or her 
office, grade, rank, or rating.” 
    j.  The VA Schedule for Rating Disabilities (VASRD) is the document used to rate 
unfitting military disabilities.  Paragraph B-1a and B1b of Appendix B to AR 635-40, 
Physical Evaluation for Retention, Retirement, or Separation (1 September 1990): 
a.  Congress established the VASRD as the standard under which percentage 
rating decisions are to be made for disabled military personnel.  Such decisions 
are to be made according to Title IV of the Career Compensation Act of 1949 
(Title IV is now mainly codified in chap 61 of Title 10, United States Code). 
b.  Percentage ratings in the VASRD represent the average loss in earning 
capacity resulting from these diseases and injuries. The ratings also represent 
the residual effects of these health impairments on civil occupations.
    k.  The PEB used VASRD diagnostic code 5202 – “5202 Humerus, other impairment 
of:”
Recurrent dislocation of at scapulohumeral joint.
With frequent episodes and guarding of all arm movements ............ 30 
With infrequent episodes, and guarding of movement only at shoulder      
level ........... 20
    l.  The orthopedic surgeon who examined the applicant noted his symptoms of 
instability as were limited to one position of the arm: “episodes of partial subluxation of 
the right shoulder with the arm in external rotation and abduction since surgery.”  
Hence, the 20% rating was correct.
    m.  There is no probative evidence the applicant had any additional medical 
condition(s) which would have failed the medical retention standards of chapter 3, AR 
40-501 and thus been subject to a finding of unfitness for continued service and 
compensable prior to his discharge.  Furthermore, there is no evidence an additional 
medical condition prevented the applicant from being able to reasonably perform the 
duties of his office, grade, rank, or rating prior to his discharge.  
    n.  Review of submitted documentation and his records in JLV shows he has been 
awarded multiple VA service-connected disability ratings.  The one for his right shoulder 
is 20%, and a rating of 20% for the left shoulder was added on 5 November 1998. 
However, the DES compensates an individual only for service incurred medical 
condition(s) which have been determined to disqualify him or her from further military 
service.  The DES has neither the role nor the authority to compensate service 
members for anticipated future severity or potential complications of conditions which 
were incurred or permanently aggravated during their military service; or which did not 
cause or contribute to the termination of their military career.  These roles and 
authorities are granted by Congress to the Department of Veterans Affairs and executed 
under a different set of laws.
    o.  It is the opinion of the ARBA Medical Advisor that neither an increase in his 
military disability rating with a subsequent change in disability discharge disposition 
from separated with severance pay to permanent retirement for physical disability nor a 
referral of his case back to the DES is warranted.

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered. The 
evidence of record shows an informal PEB found the applicant unfit for further military 
service due to recurrent right shoulder instability following right anterior shoulder 
reconstruction. The PEB recommended a 20% disability rating and his separation with 
severance pay. He concurred with the PEB's findings and recommendations and waived 
a formal hearing of his case. 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 he 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 for correction of the records of the individual concerned.

	 
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.


REFERENCES:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of 
military records must be filed within 3 years after discovery of the alleged error or 
injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to 
timely file within the 3-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments 
with authority to retire or discharge a member if they find the member unfit to perform 
military duties because of physical disability. The U.S. Army Physical Disability Agency 
is responsible for administering the Army physical disability evaluation system and 
executes Secretary of the Army decision-making authority as directed by Congress in 
chapter 61 and in accordance with Department of Defense Directive 1332.18 and Army 
Regulation 635-40.  

3.  Army Regulation 635-40 establishes the Army Disability Evaluation System and sets 
forth policies, responsibilities, and procedures that apply in determining whether a 
Soldier is unfit because of physical disability to reasonably perform the duties of his 
office, grade, rank, or rating.  

   a.  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 or 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 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. 
   
   b.  Service members whose medical condition did not exist prior to service who are 
determined to be unfit for duty due to disability are either separated from the military or 
are permanently retired, depending on the severity of the disability. 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 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 medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.  
   
   d.  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 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 his or her office, grade, rank, 
or rating in such a way as to reasonably fulfill the purpose of his or her employment on 
active duty. 
   
   e.  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%.

5.  Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure 
that an applicant seeking corrective action by 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220005087


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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