IN THE CASE OF: 

		BOARD DATE: 14 December 2022

		DOCKET NUMBER: AR20220005465


APPLICANT REQUESTS:  

*	physical disability retirement in lieu of separation with severance pay
*	correction of his records to show he completed 20 years of qualifying service for 
retirement 

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

*	DD Form 149 (Application for Correction of Military Record)
*	applicant's family photo
*	memorandum from the applicant's former company commander, 22 May 2014
*	DA Form 638 (Recommendation for Award) and Bronze Star Medal narrative and 
certificate
*	DD Form 214 (Certificate of Release or Discharge from Active Duty) for the 
period ending 18 December 2014
*	DA Form 3947 (Medical Evaluation Board (MEB) Proceedings)
*	appeal to MEB findings 
*	memorandum from the U.S. Army Physical Evaluation Board (PEB) to the 
Department of Veterans Affairs (VA), subject: Request for Rating for applicant 
*	VA Rating Decision, dated 22 July 2014, and statement of rated disabilities 
*	several military awards certificates 
*	eight-party statements of support
*	Department of Defense (DoD) Civilian Evaluation Reports
*	DoD Civilian Leave and Earnings Statement
*	excerpt of DoD Instruction (DoDI) 6040.44 (DoD Physical Disability Board of 
Review (PDBR))
*	various transcripts of U.S. Federal Courts cases

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 defers to counsel.

3.  In a 22-page statement, counsel states, in part:

	a.  The applicant was a stellar signal intelligence warrant officer who gave everything 
he had to the Army. He was repeatedly decorated, including receiving the Bronze Star 
Medal, and improved every unit he was in. His service as an intelligence officer ensured 
that thousands of service members and civilians came back home safe, and that 
hundreds of enemies of the United States did not. He also consistently went above and 
beyond, both in programs designed to liaison with local civilians, as well as in improving 
the practices of the units he was in. Yet, in the darkest period of his life, suffering from a 
severe back injury, post-traumatic stress disorder (PTSD), and a complete inability to 
sleep, the Army sought to discard him instead of helping him. Even worse, the same 
officers seeking to discard him also sought to wring every last drop of utility they could 
out of him before they forced him out. Though their attempts to separate him adversely 
failed, he accepted to continue within the Disability Evaluation System (DES) due to this 
betrayal of trust. Upon the wrongful advice of his counsel, he accepted a medical 
separation instead of continuing his appeal of his assigned rating, which would have 
resulted in a medical retirement. This wrongful counsel, which the applicant acted on 
out of trust of what seemed to be the only military personnel protecting his interests at 
the time, amounted to more than $900,000 in lost lifetime earnings. He accepted 
medical separation, ending a period of service that amounted to nearly 17 years, close 
to half of his life.

	b.  The applicant begins contributing to the fight in the Great War on Terror; he is 
deployed to Afghanistan for the first time; he severely injures his back and develops 
PTSD and severe sleep problems. Following his second deployment to Korea, he would 
be transferred to the National Security Agency (NSA) Washington, where he was in 
charge of the Mead Operations Center Counter-Improvised Explosive Device (IED) 
Analysis Cell and Analysis Directorate. Commanding a team of 210 personnel, he 
helped save the lives of thousands of service members and civilians, both through direct 
analysis and contributing to instructional materials on counter-IED operations. He would 
be awarded his second Defense Meritorious Service Medal and the prestigious 
Knowlton Award, which recognizes contributions to military intelligence, and earned an 
appointment as warrant officer. Yet, this tour took a price, as he worked extend hours 
reviewing extremely graphic videos, which caused him to begin having immense trouble 
sleeping. Chief Warrant Officer Four (CW4) , one of his commanders while at the NSA 
Counter-IED, spoke at length about the intense pressure of the position, the 12-16 hour 
days worked by the personnel, and the toll constantly closely reviewing footage of 
American Soldiers being struck by IEDs took on the applicant and the rest of the team. 
CW4 would also speak to the applicant's incredible dedication to his position, and how 
CW4 would at times have to order him to receive medical attention or take pauses in his 
work.

	c.  The applicant's first position as a warrant officer was with a military intelligence 
brigade, where he worked as its Signals Intelligence Resource Manager. He would soon 
be deployed to Afghanistan, in November of 2011, where was the officer in charge of 
the reporting cell of the Afghanistan Regional Operations Cryptological Center. While he 
was there, Bagram Air Base was under constant indirect fire, including a strike which 
resulted in a very close call for him. He also badly injured his back when moving 
equipment. He began to suffer incredible pain and was no longer capable of moving his 
legs well. In addition, his sleep problems continued to worsen, requiring his 
commanders to grant him permission to alter his work/sleep cycles and to maintain a 
flexible schedule. They did this because he was such a valuable contributor to the unit. 
Despite the intense pain and the stress of his position, he proved himself more than 
worthy of their esteem.

	d.  The physical and psychological cost of this deployment returned home with him, 
when he returned stateside on 24 December 2012, after more than a year in 
Afghanistan. He returned to NSA Georgia, where he served in a similar role as in 
Afghanistan, as a watch officer for theater support activities. There he led 400 joint 
service and contractor personnel, and his experience enabled his team to support over 
90 force prevention events, which helped ensure that many American service members 
came back home safely. He was on the night shift, and continued to have difficulties 
sleeping. His back issues continued to worsen, and he had troubles even walking. For 
all his life he had been used to working through the pain and overcoming his physical 
issues. But this, unfortunately, was too much. He tried to remain in shape but his body 
could simply not match what his mind wished of it. His physical problems were 
worsened by his lack of sleep and PTSD. He requested a transfer to a new section in 
order to have a regular schedule and to change the type of work he was doing, in order 
to try and master those problems, but his boss told him that he was too valuable and 
needed to stay. This was the start of his downfall.

	e.  Remaining in his position, and the toll it came with, resulted in him being 
extremely depressed. Not only did he face a hostile work environment, but he was 
constantly having to solve the complaints and problems brought to him by his troops 
and contractors. He remained positive at all times with them, but the negativity, personal 
difficulties, and constant exposition to combat operations continued to take a severe toll. 
He applied for a program that would move him back to NSA Washington, but this would 
require passing a physical fitness test. Due to the severe physical problems caused by 
his back injury, he failed his walk test by a few seconds. He was negatively counseled 
and retested 90 days later, but his physical problems had only gotten worse. He failed a 
second time.
	f.  At this point, his battalion commander wanted to separate him from the Army due 
to failing the physical fitness tests. He sought to explain to him his physical problems 
and the help he clearly needed. The first doctor he visited was skeptical, claiming that 
everyone had back complaints. It was only when he eventually saw the head doctor that 
someone finally took his problems seriously, not only was an MRI requested, but she 
found a variety of other problems he was suffering from. She put him in for both the pain 
management program and a medical board.

	g.  Luckily, the battalion commander's attempt to separate him from the Army for 
failing the physical fitness tests failed. Each officer in his direct chain of command 
above the battalion level recommended his retention, as well as other officers he had 
previously worked for, including the general in charge of the NSA. In the meantime, he 
continued to excel at work, despite his problems. He was held in such high esteem that 
four service members requested that he administer the oaths of enlistment during their 
reenlistment ceremonies. This reminder of the esteem of others helped him greatly 
during what was otherwise a very dark time. As an example of the hypocrisy of the 
process he had been forced to undergo, his company commander, who had been very 
much against his retention in the Army, still asked him to train all the new warrant 
officers in the unit.

	h.  In the meantime, the DES process continued. By this point, the applicant was so 
disillusioned by the Army that he decided to accept a potential discharge, instead of 
seeking to remain in the Army at all costs and receiving treatment for his injuries while 
serving. The MEB found that his only unfitting condition was thoracic spine degenerative 
changes. The applicant sought to appeal this, as the spine changes would only merit a 
low disability percentage and he was suffering from a wide array of other severe 
problems, including obstructive sleep apnea. At this point he felt alone and badly used 
by the Army, as well as heartbroken because he would not get to serve the full 20 years 
and have a proper retirement. His military assigned counsel, Lieutenant Colonel (LTC) , 
was the only person he felt he could truly trust.

	i.  By May of 2014, the applicant was alone and in the midst of the darkest period of 
his life. He was in incredible physical pain, and the Army, which he had given nearly half 
his life to, had sought to discard him after all he had contributed. Even worse, it sought 
to wring every last drop of use it could out of him while in the midst of trying to discard 
him. As noted above, the only person he felt he could trust was his assigned military 
counsel. In mid-July of 2014, LTC called him to tell him that he was extremely unlikely to 
succeed on appeal and that it made more financial sense for him to accept a medical 
separation, rather than continue the appeals process to seek a medical retirement. This 
would prove to be disastrous advice, but the applicant, trusting his military counsel and 
in the grips of his physical and mental injuries, accepted it.

	j.  The sheer scale of this disaster is evident. At the time, the applicant was a single 
man, which is what LTC grounded his advice on. The PEB had previously found his 
conditions unfitting on 6 June 2014, and had requested a disability evaluation from the 
VA to set the disability rating for the applicant. On 22 July 2014, a few days after he had 
accepted to end his appeal and accept separation, the VA would recommend to the 
PEB a rating of 80% disability (50% for sleep apnea, 30% of ischemic heart disease, 
10% for thoracic spine degeneration, 10% for cervical strain, 10% for right knee 
degenerative joint disease, 10% for left knee degenerative joint disease, 10% for left hip 
strain, 10% for adjustment disorder with mixed features, 10% for tinnitus), more than 
sufficient for a disability retirement. Yet, by this point, the process was over, due to the 
applicant having accepted his counsel's advice.

	k.  To give the sheer financial cost of LTC terrible advice. On separation the 
applicant received a severance package of 2.5 years of salary, in the amount of 
$156,892.00, calculated on his rank pay scale in 2014. In addition, he received VA 
payments at 80% disability of $1,778.43, as calculated on the VA scale as of 2014. By 
contrast, his retirement payments at 80% disability, pursuant to the calculation scale 
provided by Title 10 U.S. Code, section 1401, would have been calculated at $3,922.30 
(75% of the 36-month average of his highest paying months-as established by his 
separation payment being set on a monthly scale of $5,229.73 per month). In addition, 
he was foreclosed from concurrent retirement and disability payments under the 
Combat Related Special Compensation and Concurrent Retirement and Disability 
Payments programs. The applicant was 35 years old on separation. Assuming he lived 
an average lifespan, he had 44 years to go. In terms of lifetime earnings, based on his 
status in 2014, he lost $975,140 in lifetime earnings due to his counsel's erroneous 
advice (($3,922.30-1,778.43*44*12)-$156,892). He would have been already better off 
by the end of 2020. What makes this even worse is that accepting separation instead of 
continuing to pursue a medical retirement also meant forgoing military insurance for him 
and his family, which he now pays $400 per month for, another $211,200 in lost 
benefits. In short, his counsel's calculations were off by nearly $1.2 million, just based 
on the numbers as they were at the time in 2014, and not even taking into account for 
the lost potential concurrent payments.

	l.  The applicant meets the regulatory requirements for a medical retirement under 
Title 10 U.S. Code, section 1201, as his disabilities were rated at 80%, he was found 
unfit by a PEB, and he was active duty at the time. His decision to accept medical 
separation instead of medical retirement was an error and injustice founded on poor 
advice by assigned military counsel. The Board should correct his records by 
overturning this decision, granting him medical retirement at 80% disability, and 
awarding him any backpay due based on the difference between the medical retirement 
payments owed and his separation and VA payments.

	m.  Pursuant to DoDI 6040.44, Enclosure. 3 ,4(a)(5) (2015) the ABCMR must give 
special consideration to the VA's rating of the applicant's disabilities at 80%, as it was 
issued within 12 months of his separation. When the PEB found him unfit, it requested a 
disability rating from the VA for him. The VA proposed a rating of 80%. The threshold for 
a medical retirement is at 30%. 

	n.  It is a basic principle of law that the DoD, and all of the agencies contained within 
it, such as the Army, are bound by their regulations. DoDI 6040.44 Encl. 3 4(a)(5) states 
that the BCMRs (specifically instructing the PDBR, but also applying a universal 
principle for all boards assessing disability determinations, such as the ABCMR) are 
required to consider VA rating determinations, compare the VA rating with the PEB 
combined disability rating, and consider any variance within its deliberations, particularly 
if the VA rating was awarded within 12 months of the service member's separation. 
Though boards are not required to conform to the VA' s rating, it must explicitly address 
the rating and explain why its own rating diverges. Failure to do so is arbitrary decision 
making and requires setting aside the decision and remanding the issue to the board for 
it to address the issue.

	o.  Here, the VA actually issued this rating 5 months prior to the applicant's 
separation from the Army. Of particular note is that the VA directly contradicted the 
MEB's refusal to rate his obstructive sleep apnea. This is particularly important because 
the MEB had found his sleep apnea to not be unfitting, yet it had required massive 
adjustments within his workplace, including having a constantly changing sleep/work 
schedule, in order for him to be able to remain functional while serving. His commander 
even went so far as to say that the vast majority of signal intelligence operations would 
not have been able to accommodate the needs for flexibility imposed by the applicant's 
sleep apnea. The VA' s rating of 50% aligns with the statement of his commander and 
properly accounts for the degree of disability caused to him in both civilian and military 
workplaces by his service-connected sleep apnea. As such, the ABCMR must 
specifically consider this rating, and give it particular weight given its close temporal 
relation to his separation and disabilities while in service. Given this requirement, a 
rating of 80% disability at retirement, as found by the VA, is in order here.

	p.  The criteria for the medical retirement of active duty service members are set out 
by Title 10, U.S. Code, section 1201. Section 1201 states that a servicemember is 
eligible for a medical retirement when they are found unfit by a PEB and when their 
disabilities are greater than 30%, pursuant to the VA Schedule for Rating Disabilities 
(VASRD). It is undisputable that the applicant was an active duty servicemember, that 
the PEB found him unfit for service, and that his disabilities at the time were rated 
pursuant to the VASRD at 80% and were unfitting, well above the 30% threshold. While, 
in the past the Board has attempted at times to distinguish between ratings granted by 
the VA and the PEB, based on the allegedly different purpose of said ratings, it is 
important to stress that this was a VA rating made specifically for a PEB evaluation, and 
requested by the PEB itself. In short, it is clear that the applicant met all the criteria for a 
medical retirement, with, as stated before, a disability at retirement of 80%.

	q.  The members of the board are required to act when an applicate demonstrates, 
via a preponderance of the evidence, that a material error or injustice exists. Here, there 
is clear evidence to support the existence of a material error and injustice. The 
applicant, as has been illustrated above, clearly qualified for a medical retirement. As 
was calculated in the statement of the facts, the applicant, based on payment rates as 
they were in 2014, would have been materially better off choosing the medical 
retirement within only 70 months of the commencement of benefits. Assuming that he 
met the average life expectance of 79 for U.S. men, the poor advice of his assigned 
military counsel meant as calculated by the payment rates in 2014, a loss of lifetime 
earnings for him in the amount of $975,000 and a total loss in lifetime earnings and 
benefits of close to $1.2 million. In short, despite a medical retirement being clearly 
within his long term financial best interests, his Army assigned staff attorney instead 
suggested that he should not continue the process of appealing his initial MEB rating 
decision. Based on this exceedingly poor counsel, he accepted to end the medical 
appeals process and opted for separation and severance pay, unknowingly losing 
nearly a million dollars in lifetime earnings in the process.

	r.  Decisions made as a result of poor advice by military counsel that materially 
prejudice the long term interests of a servicemember are errors and injustices that must 
be corrected by the BCMRs. (See 878 F.2d 501, 503-6 (1989)). In White, a 
servicemember made a decision on the basis of poor legal advice by his counsel, and 
then sought to overturn said decision when he realized, nearly two decades later, that 
he had been given poor counsel. Though the ABCMR denied his application, and the 
District Court for the upheld the ABCMR's decision, the Circuit overturned the decision 
and directed the ABCMR to grant relief to the servicemember.

	s.  Here, the applicant, similar to the service member in made a decision based on 
exceedingly poor advice by his counsel. His counsel assured him, based on alleged 
projections, that a medical separation was financially preferable for him in the long run 
than a medical retirement. This was a blatant, and extremely costly, error, yet the 
applicant, trusting in the counsel assigned to him by the military and his special 
competence as to the subject at hand, made a decision based on said error. Much like 
the decision of the servicemember in this decision, founded on poor advice by assigned 
military counsel, must be overturned as an error and injustice by the Board. The Board 
should thus do so, undo the applicant's election for a medical separation instead of 
continuing the DES appeals process, and instead grant him a medical retirement at 
80% disability, as recommended by the VA. In addition, the Board should fully correct 
the injury he has suffered and make him whole by granting him backpay in the amount 
of the difference in payment between the retirement pay he would be due under Title 
10, U.S. Code, section 1407 and the separation payment and the VA payments he has 
waived by accepting the medical retirement.

	t.  The Board should, for the purposes of Concurrent Retirement and Disability 
Payments, correct the applicant's records to show that he had 20 years of qualifying 
service. This Board is charged with correcting errors or injustice. As has been laid out 
above, he only accepted separation, instead of seeking to fight as hard as he could to 
remain within the Army, due to his superior's attempt to force him out. This attempt was 
quashed thanks to the recommendations of every officer above his battalion 
commander, and previous officers he had worked for, including the current director of 
the NSA, who all recognized his stellar service to the Army. Yet, the damage had been 
done. He needed help. He asked for help. Whatever the Army had asked of him, he had 
not just given, but given far more than requested. Yet, instead of helping him, his 
battalion commander had sought to wring every last drop of use out of him, during the 
darkest period of his life, while also seeking to discard him. Due to this fundamental 
betrayal by an institution he had given so much of himself to, and the immense physical 
and mental injuries he was suffering from, he decided that it was not worth fighting to 
remain. This was despite his longstanding dream having been to remain in the Army 
until his proper retirement.

	u.  This attempt to force him out instead of helping him, this fundamental betrayal, is 
the only reason why the applicant accepted separation, instead of doing his utmost to 
continue to serve while receiving treatment. Now, he finds himself short by a mere three 
years of the 20 years of service required to qualify for Concurrent Retirement and 
Disability Payments. Given that he qualifies for a medical retirement and is receiving VA 
payments, this represents a staggering financial loss, a loss which has its roots in his 
commander's actions.

	v.  Conclusion: This Board is tasked with correcting errors and injustices, and before 
it is as a clear example of both. The applicant trusted his Army assigned attorney to 
provide him with sound counsel based on what should have been well-founded subject 
matter expertise. Instead, his counsel gave him advice which was extremely detrimental 
to his long term financial interests. Based on his trust in said advice, he accepted a 
medical separation, instead of proceeding with the DES appeals process, which would 
have resulted in him being medically retired at 80% disability. This decision must be 
corrected.

	w.  The applicant gave 17 years and his physical health to his country through 
honorable service and incredible contributions. His expertise in signals intelligence 
rightly earned him a Bronze Star Medal through his stellar performance supporting ISAF 
in Afghanistan, producing and improving critical intelligence flows which both ensured 
that more service members came home safe to their families and that more enemies of 
the United States did not. He has sacrificed greatly for his country, both physically and 
mentally, and has still sought to serve his nation in a civilian role after he could no 
physically longer serve it in the military. The least his country can do in return is ensure 
that he is able to access the full scope of the benefits he has earned. The Board is in 
the perfect position to ensure that this occurs. Undo the decision made under the 
exceedingly poor advice of the counsel assigned to him and grant him the medical 
retirement at 80% disability that he has clearly earned. The complete counsel's 22-page 
statement was provided to the Board for their review and consideration.

4.  Following 12 years and 8 months of enlisted service in the Regular Army, the 
applicant was appointed a Reserve warrant officer on 13 April 2011 and entered active 
duty on 13 April 2011. 

5.  On 18 April 2014, an MEB determined that the applicant's diagnosis of thoracic spine 
degenerative changes failed retention standards in accordance with Army Regulation 
40-501 (Standards of Medical Fitness). The MEB recommended the applicant's referral 
to a PEB. The MEB proceedings show he was diagnosed with 18 additional conditions 
and or defects, including obstructive sleep apnea, which were deemed to meet retention 
standards in accordance with Army Regulation 40-501. 

6.  The applicant did not agree with the MEB's findings and recommendations and on 
12 May 2014, his MEB counsel submitted an appeal asserting that the applicant's 
obstructive sleep apnea condition failed to meet the retention standards of Army 
Regulation 40-501, paragraph 3-41c. Specifically, that he was prescribed a continuous 
positive airway pressure (CPAP) machine but he was still suffering from daytime 
hypersomnolence.

7.  The Senior MEB Physician, after consideration of the appeal, confirmed the MEB's 
original findings and recommendations on 19 May 2014.

8.  On 3 August 2014, a PEB found the applicant unfit for further military service due to 
thoracic spine degenerative changes. The PEB recommended a 10% disability rating 
and the applicant's separation with severance pay.  

9.  The PEB found the applicant's additional 18 medical conditions, including obstructive 
sleep apnea, not unfitting because the MEB indicated these conditions met retention 
standards; did not indicate that any of these conditions caused profile limitations 
(functional activities); and, did not indicate that performance issues, if any, were due to 
these conditions.

10.  The applicant's DA Form 199 (Informal PEB Proceedings) contains the following 
statements in Section VI:

	a.  This case was adjudicated as part of the Integrated Disability Evaluation System 
(IDES) under the 19 December 2011 Policy and Procedure Directive-type Memorandum 
(DTM) 11-015.

	b.  The specific VASRD codes to describe the Soldier's condition and the disability 
percentage was determined by the VA and is documented in a VA memorandum dated 
22 July 2014. The disposition recommendation was determined by the PEB based on 
the VA disability rating proposed and applicable statutes and regulations for the 
Physical Disability Evaluation System (PDES).  

11.  On 15 September 2014, the applicant concurred with the PEB's findings and 
recommendations and did not request reconsideration of his VA ratings.

12.  The applicant's DD Form 214 shows he was discharged on 18 December 2014 
under the provisions of Army Regulation 635-40 (Disability Evaluation for Retention, 
Retirement, or Separation), chapter 4, by reason of disability, severance pay, combat 
zone (enhanced). The DD Form 214 also shows he completed 16 years, 4 months, and 
6 days of active service.

13.  The applicant provided:

	a.  A memorandum from his former company commander, dated 22 May 2014, 
stating the applicant was unable to fully perform his duties due to issues of alertness 
and drowsiness as a result of his sleep apnea condition.

	b.  A VA Rating Decision, dated 22 July 2014, and a statement of rated disabilities 
showing the applicant was granted service-connected disability compensation, with a 
combined disability rating of 100%, for a number of medical conditions that include 
obstructive sleep apnea.

	c.  Eight third-party statements that attest to the applicant's outstanding character, 
dedication to duty, and accomplishment and contributions during and after his military 
service.

14.  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.  

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

17.  MEDICAL REVIEW:

The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this 
case. Documentation reviewed included the applicant’s ABCMR application and 
accompanying documentation, the military electronic medical record (AHLTA), the VA 
electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the 
Medical Electronic Data Care History and Readiness Tracking (MEDCHART) 
application, and/or the Interactive Personnel Electronic Records Management System 
(iPERMS).  The ARBA Medical Advisor made the following findings and 
recommendations: 

    a.  The applicant has applied to the ABCMR requesting 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 marked PTSD as an issue related to his request. 

    b.  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 13 April 2011 and was separated with $156,892.80 of 
disability severance pay on 18 December 2014 under provisions provided in Chapter 4 
of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 
2012).  

    c.  A Soldier is referred to the IDES when they have one or more conditions which 
appear to fail medical retention standards as documented on a duty liming permanent 
physical profile.  At the start of their IDES processing, a physician lists the Soldier’s 
referred medical conditions in section I the VA/DOD Joint Disability Evaluation Board 
Claim (VA Form 21-0819).  The Soldier, with the assistance of the VA military service 
coordinator, lists all conditions they believe to be service-connected disabilities in block 
8 of section II or a separate Statement in Support of Claim (VA form 21-4138).  

    d.  Soldiers then receive one set of VA C&P examinations covering all their referred 
and claimed conditions.  These examinations, which are the examinations of record for 
the IDES, serve as the basis for both their military and VA disability processing.  All 
conditions are then rated by the VA prior to the Soldier’s discharge.  The physical 
evaluation board (PEB), after adjudicating the case sent them by the medical evaluation 
board (MEB), applies the applicable VA derived ratings to the Soldier’s unfitting 
condition(s), thereby determining their final combined rating and disposition.  Upon 
discharge, the Veteran immediately begins receiving the full disability benefits to which 
they are entitled from both their Service and the VA.

    e.  On 11 February 2014, the applicant was referred to the IDES for “Bilateral 
patellofemoral syndrome.”   He claimed fifteen additional conditions on a separate 
Statement in Support of Claim (VA form 21-4138), including “mental health condition to 
include depression, and insomnia.”  A medical evaluation board (MEB) determined his 
“Thoracic spine degenerative changes” failed the medical retention standards of AR 40-
501, Standards of Medical Fitness.  They determined eighteen other medical conditions 
met medical retention standards, including adjustment disorder with mixed features.  

    f.  AHLTA shows the applicant underwent a mental status evaluation on 29 July 2014 
for possible chapter due to repeated Army Physical Fitness Tests failures.  While the 
applicant was symptomatic with anxiety, depression, and sleep disturbances, the 
provider found he met medical retention standards.  He was seen by psychiatry on 30 
September 2014, diagnosed with adjustment disorder, and released without limitation. 

    g.  On his Mental Disorders Disability Benefits Questionnaire (aka VA C&P), the 
provider documented the diagnosis of “Adjustment Disorder with Mixed Features,” his 
symptoms of depressed mood, anxiety, chronic sleep impairment, and panic attacks 
that occur weekly or less often, concluding:

“Occupational and social impairment due to mild or transient symptoms which 
decrease work efficiency and ability to perform occupational tasks only during 
periods of significant stress; or symptoms controlled by medication

    h.  His senior rater marked the applicant as “Qualified” on his final Officer Evaluation 
Report with a thru date of 11 August 2014, stating:

“CW2 {Applicant}'s performance was satisfactory, he is decisive, well organized 
and focused on his duties.  Mr. {Applicant} is an innovative thinker who works 
best with minimal guidance and executes the mission of the Theatre Support 
Activity (TSA). {Applicant} was responsible for maintaining oversight of all job 
qualification standards and certifications standards within his shop.”

    i.  The applicant non-concurred with the MEB contending his obstructive sleep apnea 
did fail medical retention standards.  His appeal was addressed by a physician who was 
treating sleep apnea patients.  The provider concluded the applicant’s sleep apnea met 
medical retention standards:

“Although this soldier certainly does have moderate to severe obstructive sleep 
apnea (also related to his body mass index of 40), I would expect a reasonable 
improvement once the soldier has begun to use his continuous positive airway 
pressure machine with appropriate titration as necessary.  In my experience, I 
would not expect any difficulties with obtaining a significant reduction in the 
soldier’s apnea/hypopnea.”

    j.  His limited use of the CPAP machine is seen in a 25 August 2014 AHLTA 
encounter:

“34-year-old male with history  of HTN {hypertension}, sleep apnea, obesity,  
being followed by sleep clinic--last seen 23 July 2014. Sleep clinic states SM 
{service member} noncompliant with usage of C-pap machine using only average 
of 1.5 hours/ night.  Is presently pending mouth appliance.  Requesting extension 
of 30-day profile that was provided to assist patient with adjustment of C-pap 
machine and complaining of difficulties sleeping, shortness of breath and 
uncontrolled HTN ...  

When discussed with SM that extension of profile was not an option, he became 
very upset stating he was still having difficulties sleeping and had noted any 
improvement even with use of profile however, SM recently moved to new unit 
where he has to report at 0630hrs and states is having difficulties showing up to 
0630hrs formation.  

Upon further discussion, SM became very irritated, stating that "you people are 
assholes" and " I am tired of being disrespected."  Discussed with SM option to 
discuss further with Chief of Clinic, however, SM declined.  Attempts made to 
obtain resolution were declined by SM stating the profile is what he was here for.  
Presently undergoing MEB--pending appeal at this time.”

    k.  The case along with his appeal was forwarded to a physical evaluation board 
(PEB) for adjudication.

    l.  On 3 August 2014, the applicant’s informal PEB found his “Thoracic spine 
degenerative changes” to be the sole unfitting medical condition for continued service.  
They determined the remaining sixteen medical conditions were not unfitting for 
continued military service.   The PEB applied the VBA derived rating of 10% to this 
condition.  

    m.  Because the applicant’s combined military disability rating was less than 30%, the 
PEB recommended the applicant be separated with disability severance pay.  On 15 
September 2014, after being counseled on the informal PEB’s findings by her PEB 
Liaison Officer (PEBLO), the applicant concurred with the informal PEB’s findings, 
waived his right to a formal hearing, and declined to request a VA reconsideration of his 
disability rating.  

    n.  Review of his records in AHLTA show he was diagnosed with diabetes with the 
initiation of oral medication in May 2014.  Diabetes requiring oral medication fails the 
medical retention standard in paragraph 3-11d of AR 40-501, Standards of Medical 
Fitness (4 August 2011.  This new condition should have been evaluated by an MEB 
and referred to a PEB for adjudication.  

    o.  The applicant’s cardiac condition should also have been referred to the PEB for 
adjudication.  AHLTA also shows the applicant was referred to cardiology in May for 
further evaluation of an abnormal echocardiogram:

“34-year-old active-duty male, undergoing MEB.  History of abdominal obesity, 
HTN, HLD {hyperlipidemia}, and abnormal EKG.  Echocardiogram results from 
VA reveal possible resting ischemic heart disease.  Septum appears mildly 
hypokinetic.  Recommends further cardiology evaluation. Please eval and treat.”

    p.  His VA Heart Conditions (including Ischemic & Non-ischemic Heart Disease, 
Arrhythmias, Valvular Disease and Cardiac Surgery) Disability Benefits Questionnaire 
completed on 28 March 2014 shows the applicant had been diagnosed with chronic 
ischemic heart disease.  Though it notes his condition had improved since 2008, it 
states he continued to experience fatigue and shortness of breath, and an 
echocardiogram revealed left ventricular hypertrophy with an estimated left ventricular 
ejection fraction of 50-55%, diastolic dysfunction, and a mildly hypokinetic septum 
suggesting resting ischemic heart disease.

    q.  One measure of the heart’s ability to support physical activity in the MET or 
metabolic equivalent.  For VA purposes, it may either be exercise based or interview 
based).  The applicant’s was based on his interview and was estimated to be between 
5-7 METs stating “This METs level has been found to be consistent with activities such 
as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), heavy 
yard work (digging).  

    r.  Paragraph 3-21e in AR 40-501 shows that myocardial disease which is Functional 
Class II or worse (New York Heart Association or Canadian Cardiovascular Society) 
fails medical retention standards.  Table 3-1 of AR 40-501 lists these standards which 
would meet and fail retention standards.  Based on the limited information in the record, 
the applicant’s cardiac condition was either a marginal class I or class II and so should 
have undergone further evaluation before it was declared to meet medical retention 
standards.

 

    s.  The 22 July 2014 VA Ratings Decision for his IDES processing shows his cardiac 
condition was rated at 30%:



    t.  We have assigned a 30 percent evaluation for your ischemic heart disease based 
on: 

• Evidence of cardiac hypertrophy on echocardiogram • Workload of greater than 
five METs but not greater than seven METs results in dyspnea, fatigue, angina, 
dizziness, or syncope.

    u.  As for his mental health condition, there is no probative the applicant’s adjustment 
disorder failed the medical retention standards of chapter 3 of AR 40-501, Standards of 
Medical Fitness, prior to his discharge.  Furthermore, there is no evidence that any 
medical condition prevented the applicant from being able to reasonably perform the 
duties of his office, grade, rank, or rating prior to his discharge. 

    v.  The condition was rated at 10% while the applicant was in the IDES process and 
is currently at 10%.  JLCV shows he has recently been diagnosed with PTSD but it is 
not currently a rated disability.

    w.  It is the opinion of the ARBA Medical Advisor that a referral of his case back to the 
DES is warranted for evaluation of his diabetes and cardiac condition.     


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that partial relief was warranted. The Board 
carefully considered through counsel the applicant's record of service, documents 
submitted in support of the petition and executed a comprehensive and standard review 
based on law, policy and regulation. Upon review through counsel of the applicant’s 
petition, available military records and the medical advisory the Board concurred with 
the advising official finding a referral of the applicant’s case back to the DES is 
warranted for evaluation of his diabetes and cardiac condition. Based upon the 
preponderance of the evidence, the Board agreed that counsel demonstrated the 
applicant’s record should be directed to be entered into the Disability Evaluation System 
(DES) for medical evaluation consideration, with all relief dependent upon a final 
medical determination. Therefore, the Board granted partial relief.

2.  Referral to the IDES occurs when a Soldier has one or more conditions which 
appear to fail medical retention standards as documented on a duty liming permanent 
physical profile.  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.


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.  The Board determined the evidence presented is 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 be corrected 
by directing the applicant be entered into the Disability Evaluation System (DES) and a 
Medical Evaluation Board (MEB) convened to determine whether the applicant’s 
condition(s), met medical retention standards at the time of service.

     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 her 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 IDES, these proceedings will serve as the authority to void his administrative 
separation and to issue her the appropriate separation retroactive to her 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 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 to physical disability retirement in lieu of separation with 
severance pay and correction of his records to show he completed 20 years of 
qualifying service for retirement 

	 
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 PDES 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 DES 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. 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.  

	b.  The mere presence of an impairment does not, of itself, justify a finding of 
unfitness because of physical disability. In each case, it is necessary to compare the 
nature and degree of physical disability present with the requirements of the duties the 
Soldier reasonably may be expected to perform because of their office, grade, rank, or 
rating.   

	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 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. 

	d.  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%. 
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.  DTM 11-015, dated 19 December 2011, explains the IDES. It states:

	a.  The IDES is the joint Department of Defense (DoD)-VA process by which DoD 
determines whether wounded, ill, or injured service members are fit for continued 
military service and by which DoD and VA determine appropriate benefits for service 
members who are separated or retired for a service-connected disability. The IDES 
features a single set of disability medical examinations appropriate for fitness 
determination by the military departments and a single set of disability ratings provided 
by VA for appropriate use by both departments. Although the IDES includes medical 
examinations, IDES processes are administrative in nature and are independent of 
clinical care and treatment.

	b.  Unless otherwise stated in this DTM, DoD will follow the existing policies and 
procedures requirements promulgated in DoDI 1332.18 and the Under Secretary of 
Defense for Personnel and Readiness memoranda. All newly initiated, duty-related 
physical disability cases from the Departments of the Army, Air Force, and Navy at 
operating IDES sites will be processed in accordance with this DTM and follow the 
process described in this DTM unless the military department concerned approves the 
exclusion of the service member due to special circumstances. Service members whose 
cases were initiated under the legacy DES process will not enter the IDES. 

	c.  IDES medical examinations will include a general medical examination and any 
other applicable medical examinations performed to VA Compensation and Pension 
standards. Collectively, the examinations will be sufficient to assess the member’s 
referred and claimed condition(s) and assist VA in ratings determinations and assist 
military departments with unfit determinations.  

	d.  Upon separation from military service for medical disability and consistent with 
BCMR procedures of the military department concerned, the former service member 
may request correction of his or her military records through his or her respective 
military department BCMR if new information regarding his or her service or condition 
during service is made available that may result in a different disposition. For example, 
a veteran appeals VA’s disability rating of an unfitting condition based on a portion of his 
or her service treatment record that was missing during the IDES process. If the VA 
changes the disability rating for the unfitting condition based on a portion of his or her 
service treatment record that was missing during the IDES process and the change to 
the disability rating may result in a different disposition, the service member may 
request correction of his or her military records through his or her respective military 
department BCMR.

	e.  If, after separation from service and attaining veteran status, the former service 
member desires to appeal a determination from the rating decision, the veteran has one 
year from the date of mailing of notice of the VA decision to submit a written notice of 
disagreement with the decision to the VA regional office of jurisdiction.

6.  The DoD PDBR, was legislated by Congress and implemented by DoD to ensure the 
accuracy and fairness of combined disability ratings of 20% or less assigned to service 
members who were discharged between 11 September 2001 and 31 December 2009.
*	The PDBR uses medical information provided by the VA and the military 
department
*	Once a review is complete, the PDBR forwards a recommendation to the 
secretary of the respective branch of the armed services.
*	It is up to the individual service branch to make the final determination on 
whether to change the original disability determination

7.  Concurrent Retirement and Disability Pay (CRDP), as explained by the Defense 
Finance and Accounting Service, allows military retirees to receive both military retired 
pay and VA compensation. This was prohibited until the CRDP program began on         
1 January 2004. CRDP is a "phase in" of benefits that gradually restores a retiree's VA 
disability offset. This means that an eligible retiree's retired pay will gradually increase 
each year until the phase in is complete effective January 2014. Individuals do not need 
to apply for CRDP. If qualified, the individual will be enrolled automatically. In order to 
be eligible, the individual must be a regular retiree with a VA rating of 50% or greater. If 
the individual was placed on disability retirement, but would be eligible for military 
retired pay in the absence of the disability (i.e. 20 years of service), the individual may 
be entitled to receive CRDP.
8.  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)	AR20220005465


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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