IN THE CASE OF: BOARD DATE: 5 December 2022 DOCKET NUMBER: AR20220005847 APPLICANT REQUESTS: reconsideration of his prior request for a medical retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Orders 151-303, 31 May 2005 * Orders 208-10, 27 July 2006 * Permanent Orders 214-01, 2 August 2006 * Medical Hold Referral, 2 August 2006 * DA Form 3349 (Physical Profile), 2 August 2006 * Orders A-08-620929, 10 August 2006 * Line of Duty (LOD) Request * DA Form 2173 (Statement of Medical Examination and Duty Status), 8 September 2006 * LOD Approval, 8 September 2006 * Orders 284-08, 11 October 2006 * Orders 290-063, 17 October 2006 * DD Form 214 (Certificate of Release or Discharge from Active Duty) effective 10 November 2006 * Orders 102-502, 12 April 2007 * DA Form 3349, 18 April 2008 * State Surgeon Memorandum, 2 September 2008 * State Surgeon Memorandum, 6 October 2008 * Notification of Discharge, 6 October 2008 * Notification of Discharge, 7 October 2008 * Orders 312-519, 7 November 2008 * NGB Form 22 (Report of Separation and Record of Service) effective 6 November 2008 * DD Form 215 (Correction to DD Form 214) issued on 19 November 2009 * Medical Records (20 pages) with Images (5 pages) * Five Department of Veterans Affairs (VA) Letters 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 AR20110022838 on 7 June 2012. 2. The applicant states he would like to be given the opportunity to change his medical discharge to a medical retirement. He was denied a medical evaluation board (MEB) while on active duty and after 2 years, he was finally offered an MEB. He was persuaded to sign papers to take a military discharge after receiving bad information. a. He was critically injured while deployed to Iraq on 24 July 2006. He was medically evacuated to Germany followed by Walter Reed Army Medical Center (WRAMC) for continued treatment. While at WRAMC, he requested an MEB and was informed that National Guard Soldiers are taken care of by their home duty station. He was subsequently told the priority for MEB was on active duty Soldiers and it took approximately 9 months. He was discharged from the WRAMC on 15 October 2006. During his demobilization process at Fort McCoy, WI, he was never given an option for medical evaluation. He fought for two years and was told no one knew how to handle his situation, not even at the State level. b. He was finally handed an MEB referral form on 6 October 2008 while on drill. He immediately called the number on the form and spoke to Staff Sergeant (SSG) to schedule his evaluation. SSG asked him about his disability status, and he shared that the VA had already rated him at 100% for his injuries. SSG then proceeded to advise him that there are two ways of getting rated, through the branch of service or through the VA and since he had already been rated at 100% from the VA, there was no reason to go through the MEB since the VA usually rated higher. c. The applicant was informed by SSG DAB that if he were to take the MEB, he would be sent to Fort Knox, KY where he would be required to remain for no less than 3 months. SSG also reminded the applicant that he had been gone long enough with his deployment and he did not want to leave his family again since he was already rated at 100% by the VA. He could waive the MEB and take a medical discharge to avoid the hassle. He was not informed by the SSG that it was beneficial to be rated by both and the additional benefits he would be giving up. He was under the impression that he would only be giving up Tricare, but was not concerned since he had coverage through the VA. He was also not informed that by waiving the MEB, he would also be waiving his eligibility for Combat Related Service Compensation (CRSC). d. His injuries have continued to worsen with time. By 2008, he was already dealing with severe pain, extreme chronic anxiety, and constant panic attacks. The challenges grew so severe he quit his job and lost his ability to function as a Soldier. His medical conditions, coupled with the persuasion of SSG led him to waive his MEB and he believed he was making the best choice at the time. e. Upon returning from deployment, the unit was notified they would be deploying again in 2008. His unit lost many Soldiers due to retention and new enlistments were uncommon. He was placed in a SSG position at his unit with no competition since there were many slots to fill. During the pre-mobilization screening, he was found to be unfit due to his medical conditions. He waived his Army drill to continue collecting his VA compensation since you are not authorized to receive two concurrent checks from the Federal government. His command was aware that he was drilling with no pay, he was medically disabled, and non-deployable. He felt useless as he was no longer regarded as a leader and was instead the caretaker for other non-deployable Soldiers in the unit. 3. The applicant provides: a. The below listed documents to be referenced in the service record: * Orders 151-303 dated 31 May 2005 * Orders A-08-620929 dated 10 August 2006 * DA Form 2173 dated 8 September 2006 * Orders 290-063 dated 17 October 2006 * DD Form 214 effective 10 November 2006 * State Surgeon Memorandum dated 6 October 2008 * Notification of Discharge dated 7 October 2008 * Orders 312-519 dated 7 November 2008 * NGB Form 22 effective 6 November 2008 * DD Form 215 issued on 19 November 2009 b. Documents considered in the previous ABCMR decision: * LOD Request * LOD Approval dated 8 September 2006 * Orders 102-502 dated 12 April 2007 * Partial Medical Records (dated 8, 15, 18 August 2006) c. Orders 208-10, dated 27 July 2006, reassigned the applicant to WRAMC for further medical care with an effective date of 27 July 2006. d. Permanent Orders 214-01, dated 2 August 2006, awarded the applicant the Purple Heart for injuries received as a result of hostile actions on 22 July 2006. e. A Notification of Medical Hold/MEB Referral from WRAMC. dated 2 August 2006, where the physician marked no to “MEB needed” and no to “Return to Duty,” The applicant was required to be attached to a medical hold unit. f. A DA Form 3349, dated 2 August 2006, shows the applicant was issued a temporary profile with a rating of 3 on physical capacity/stamina for multiple mandibular fractures status post (s/p) open reduction. The profile expired on 3 November 2006. g. Orders 284-08, dated 11 October 2006, reassigned the applicant to the demobilization station with a report date of 16 October 2006. h. A DA Form 3349, dated 18 April 2008, shows the applicant was issued a permanent profile with ratings of 3 in physical capacity/stamina, upper extremities, and psychiatric for post IED blast, traumatic brain injury (TBI), back injury, and post- traumatic stress disorder (PTSD). i. A memorandum from the State Surgeon, dated 2 September 2008, notified the commander the applicant’s medical records/documentation were being reviewed for TBI and PTSD. The results of the evaluation indicated the applicant did not meet retention standards. It was not advisable for the applicant to waive an MEB; however, he could waive the right and request a medical discharge. j. A Notification of Discharge, dated 6 October 2008, notified the commander the applicant waived his right for an MEB and would receive a medical discharge. k. His medical records include new medical evidence of daily office visits from December through January 2008, therapist notes from March 2008, a letter from a chiropractor noting he was seen for upper back and neck pain, and five images of what appears to be a combat vehicle and images of the applicant’s injuries. l. Five VA letters notified the applicant of the following: (1) He was granted a combined service connected rating of 90% for the following disabilities effective 11 November 2006: * contusion of the cervical spine cord, resolving – 0% * ligamentous separation of the xiphoid – 0% * s/p mandibular fracture with loss of structure of the right mandible, impairment of jaw function and temporomandibular disorder – 50% * cognitive disorder, not otherwise specified (NOS); mild neurocognitive disorder due to TBI and chronic PTSD – 30% * cranial nerve damage and temporal regional headaches – 30% * through and through shrapnel injury of the right upper arm – 10% * ulnar nerve damage of the right upper extremity with residual of shrapnel injury of the right arm – 10% * bilateral patellofemoral syndrome – 10% * tinnitus – 10% * right ear hearing loss – 10% * benign paroxysmal positional vertigo (BRRV) with underlying weakness of the right side vestibular nerve – 10% * loss of teeth (26, 27, 28, and 29) due to trauma – 10% * nasal obstruction – 10% * strain of the thoracic spine – 10% * separate evaluation of 10% for each knee (2) A letter dated 2 May 2007 shows the applicant was granted service connections for scars of the head, face, and neck, effective 11 November 2006, as follows with a combined disability rating increase to 100%: * scar anterior to the right tragus (2 cm x 1 cm) – 10% * scar at the right angle of the mandible (3 cm x 1 cm) – 10% * burn injury scar of the anterior neck (1.5 in x 1 in) – 10% * Tracheostomy scar which measured (1.375 in x .25 in) – 10% * scar on the right chin (1.5 cm) – 0% (3) The following conditions were considered, and he was granted service connection for the below disabilities effective 11 November 2006: * strain of the muscles of the pectoral girdle with left shoulder limitation of motion – 10% * contusion of the cervical spinal cord, resolving – increased to 10% (4) A letter dated 12 September 2008 notified the applicant he was granted entitlement to educational benefits effective 24 July 2008. (5) A letter dated 25 March 2008 notified the applicant they found the severity of the below conditions increased, and a new disability rating was granted effective 1 August 2008: * cognitive disorder, not otherwise specified; mild neurocognitive disorder due to TBI; chronic PTSD; panic disorder, not otherwise specified – 50% * strain of the muscles of the pectoral girdle with left shoulder limitation of motion – 20% 4. A review of the applicant’s service record shows: a. He enlisted in the Wisconsin Army National Guard (WIARNG) on 24 January 1998. b. Orders 015-019, dated 24 January 1998, ordered the applicant to initial active duty training (IADT) for a period of approximately 10 weeks with a report date of 22 February 1998. c. On 2 July 1998, he was released from active duty training with an uncharacterized characterization of service. His DD Form 214 shows he completed 4 months and 11 days of active service. d. He entered active duty on 11 October 2001. He was honorably released from active duty (REFRAD) on 10 May 2002. His DD Form 214 shows he completed 7 months of active service. e. Orders 151-303, dated 31 May 2005, ordered the applicant to active duty with a report date of 6 June 2005. f. Orders A-08-620929, dated 10 August 2006, retained the applicant on active duty assigned to Walter Reed Medical Hold with a report date of 9 August 2008. An amendment to the orders were published, Orders A-08-620929R, dated 31 October 2006, revoked the orders or rescinded the unexecuted portion of the active duty order. g. A DA Form 2173 shows on 24 July 2006 the applicant was injured in an improvised explosive device (IED) blast in Tallil, Iraq, and sustained facial trauma, subconjunctival hemorrhage, papilledema, open wound of the right arm, and right mandible fracture. He was admitted to the hospital and his injuries were believed to likely cause temporary disability. No formal LOD investigation was required, and the injury was considered to have been incurred in line of duty. h. On 17 October 2006, the applicant signed a disability counseling statement which outlined the procedures to receive medical care and the way ahead for the LOD process. i. On 17 October 2006, the applicant signed a rights and warning statement and provided a DA Form 2823 (Sworn Statement) detailing the events of 24 July 2006. He was involved in an IED attack while performing convoy security near Tallil, Iraq. The IED blast resulted in shrapnel in his right arm and the right side of his face and jaw. The IED blast also caused the vehicle to off road into a body of water which caused additional face trauma when his face hit the steering wheel or dashboard. As of the day of the statement, his open wounds had healed; however, he still experience partial facial paralysis of the right side of his head. He had no feeling in his right arm from his elbow to his pinky finger and had limited use due to the pain and tightness. The applicant further noted he was missing four teeth on his lower right side and could only open his mouth about half an inch which kept him on a soft food diet. His right ear was almost completely deaf and the noise he could hear was distorted. The application of pressure to his face caused moderate to severe pain, bending his neck caused a tingling sensation from his neck through his back and into his fingers, and he had been diagnosed with vestibular disorder, a condition which causes a lay right eye and dizziness. j. On 17 October 2006, the Assistant Installation Adjutant, by authority of the Secretary of the Army, found the injury was incurred in line of duty. k. Orders 290-063, dated 17 October 2006, released the applicant from active duty, not by reason of physical disability, with an effective date of 10 November 2006. l. He was honorably released from active duty on 10 November 2006. His DD Form 214 shows he completed 1 year, 5 months, and 5 days of active service. He was assigned separation code LBK and the narrative reason for separation was listed as “Completion of Required Active Service.” m. A memorandum from the Deputy State Surgeon, dated 6 October 2008, indicated the applicant’s medical records were reviewed for TBI and PTSD. The applicant did not meet retention standards and the applicant did not request a medical evaluation board. A medical discharge was required for the applicant. n. On 7 October 2008, the applicant was notified he would be discharged from the WIARNG effective 6 November 2008 for failure to meet medical retention standards. o. Orders 312-519, dated 7 November 2008, discharged the applicant from the Army National Guard and as a reserve of the Army with an effective date of 6 November 2008. p. He was honorably discharged from the WIARNG on 6 November 2008. His NGB Form 22 shows he completed 10 years, 9 months, and 13 days of net service for the period. Block 23 (Authority and Reason) shows the applicant was medically unfit for retention per Army Regulation (AR) 40-501. q. A DD Form 215, issued on 19 November 2009, shows the applicant was awarded a Purple Heart. 5. A medical advisory was rendered on 21 May 2012 in the processing of ABCMR Docket Number AR20110022838. The medical advisory opined: a. There are no medical records that suggest that the [applicant] sustained any wound that rendered him unfit for further service. His shrapnel wounds required several surgical procedures around the head and neck but were not the kind of wounds that rendered a Soldier "unfit". b. The applicant was extended 179 days to complete his medical care but after a couple of months (October 2006) requested and was granted an early release from active duty. There is no indication that he was considered for or that he expected an MEB. His wounds were sufficiently healed to allow a REFRAD. c. The applicant returned to duty, performed the duties of his MOS, and received good evaluations. In February 2007 he was promoted to Staff Sergeant. He continued to drill on a monthly basis. In August 2008 he was deployed again for three weeks to perform border security in (2 August - 22 August). d. In view of the applicant's performance in his MOS as well as his deployment to the border for 3 weeks, it seems unlikely that an MEB would have found him unfit. For whatever reason, though, the applicant did not request an MEB and also did not request a non-duty related PEB (to argue that he was fit). He was discharged in November 2008. e. The medical records submitted were for injuries that were not determined to fail to meet retention standards. Their only value is to support a later finding of PTSD. Although the applicant was diagnosed with PTSD/TBI and panic disorder (lumped together and inseparable for rating purposes) the available record fails to suggest that these conditions were unfitting. In 2011 the applicant told a reporter that on returning from a deployment (August 2008) it was time to train up for another deployment to a Iraq but "Luckily my condition got me out of the second Iraq deployment." He in one fashion or another notified the State Surgeon of his August 2008 VA disability rating but did not request an MEB. In fact, as noted in the proposed ROP, in September 2008 he specifically waived his right to an MEB, acknowledging that he was forgoing any potential disability rating from the Army. He was medically disqualified in October 2008. In the absence of an MEB he was presumed to be medically unqualified. Had he undergone an MEB, he may have been found to be fit for deployment. There is no evidence of injustice. 6. By regulation (AR 40-501), medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects are causes for rejection or medical unfitness for these specialized duties. If the profile is permanent the profiling officer must assess if the Soldier meets retention standards. Those Soldiers on active duty who do not meet retention standards must be referred to a medical evaluation board. 7. By regulation (AR 635-40), the Army disability system 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 or her office, grade, rank, or rating. The regulation states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 8. 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. 9. Title 38, United States 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. 10. Title 38, Code of Federal Regulations, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to Veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his/her 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. 11. 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, the Army Aeromedical Resource Office (AERO), and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting a referral to the Disability Evaluation System (DES) and a medical retirement. He states: “I was denied MEB while on active duty. After 2 years, I was finally offered an MEB and on that very day I was given serious misinformation and was persuaded to sign papers to and take a Military Discharge.” b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s Report of Separation and Record of Service (NGB Form 22) for the period of Service under consideration shows the former Guardsman enlisted in the Army National Guard on 24 January 1998 and was discharged from the Wisconsin Army National Guard (WIARNG) on 6 November 2008 under the provisions of paragraph 8-35l(8) of NGR 600-200, Enlisted Personnel Management: Medically unfit for retention per AR 40-501. c. A DD 214 shows the former Infantryman was mobilized in support of Operation Iraqi Freedom from 6 June 2005 thru 10 November 2006 with service in Iraq/Kuwait from 17 August 2005 thru 26 July 2006. During this period of Service, he earned a Combat Infantryman Badge and was awarded a Purple Heart. d. The applicant was seriously injured by an improvised explosive device (IED) on 24 July 2006, sustaining penetrating injuries to his right upper arm, face, and throat with multiple facial fractures. He was medically evacuated thru Landstuhl Regional Medical Center to Walter Reed Army Medical Center WRAMC). e. He was initially unable to speak or eat. He was discharged from WRAMC after about 2.5 weeks and continued his outpatient evaluation and treatments while staying in the Mologne house. He was released form active duty on 10 November 2006 f. The applicant was placed on a duty limiting permanent physical profile for “Post IED blast, TBI, Back, PTSD” on 18 April 2008. This action should have initiated the applicant’s processing in the DES. g. The applicant was notified in a 2 September 2008 memorandum from the WIARNG State Surgeon that after a records review on 27 August 2008, he had determined the applicant’s PTSD and TBI failed the chapter 3 medical retention standards in AR 40-501, Standards of Medical Fitness. h. The provider erred in offering the applicant the option waiving out and not going through the DES. i. Paragraph E3.P2.7 of Depart of Defense Instruction 1332.38 SUBJECT: Physical Disability Evaluation, 14 November 1996, covers the waiver process for Service Members in the Disability Evaluation System. Waiver requests are authorized only when one or more of the following are applicable: E3.P2.7.1. The MEB reflects that the member's medical condition existed prior to service and was not aggravated by service. E3.P2.7.2. Physical disability evaluation requires extension past the date of the member's Service agreement or an approved retirement date, and the member does not consent to retention. E3.P2.7.3. A Service member reaches the end of active obligated Service and has no remaining Service obligations. j. None of these were applicable in this case: The applicant’s conditions did not exist prior to his service, and his Oath of Extension of Enlistment or Reenlistment (DA form 4836) shows he still had 2 years, 2 months, and 18 days of remaining obligation as of 6 November 2008 (ETS of 23 January 2011). k. Paragraph 7-1 of AR 40-400, Patient Administration, states in part: “If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the physical evaluation board liaison officer (PEBLO).” Note there is no mention of component or duty status. Paragraph 7-5b(5) is more direct for this case, stating that one of the situations which requires MEB consideration is “an RC member not on AD who requires evaluation because of a condition that may render him or her unfit for further duty.” l. Review of his records in JLV shows the applicant was granted multiple several service-connected disability ratings related to his blast injury to include PTSD (50%), partial loss of lower jaw (50%), and paralysis of fifth cranial nerve (30%). All these ratings were effective 11 November 2006, almost 2 years prior to his inappropriate administrative separation. m. The applicant clearly had multiple service incurred medical conditions which was the cause of his career termination. Paragraph E3.P3.5.1 of Department of Defense Instruction 1332.38 Subject: Physical Disability Evaluation (14 November 1996) states: “The DES compensates disabilities when they cause or contribute to career termination.” n. The applicant was inappropriately discharged under paragraph 8-35l(8) of NGR 600-200: “Commanders, who suspect that a Soldier may not be medically qualified for retention, will direct the Soldier to report for a complete medical examination per AR 40-501. If the Soldier refuses to report as directed, see paragraph 6-36u below. Commanders who do not recommend retention will request the Soldier’s discharge. When medical condition was incurred in line of duty, the procedures of AR 600-8-4 will apply. Discharge will not be ordered while the case is pending final disposition. This paragraph also includes those Soldiers who refuse or ineligible to reclassify into a new MOS. RE 3.” o. Paragraph 2-9c of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006), identifies the errors made by his command: “The unit commander will – c. Refer a soldier to the servicing MTF for medical evaluation when the soldier is believed to be unable to perform the duties of his or her office, grade, rank, or rating.” p. It is the strong opinion of the ARBA Medical Advisor that a referral of his case to the Disability Evaluation System is clearly warranted. q. The applicant is likely to be medically retired, and this retirement would make him eligible to receive Combat Related Special Compensation for all his combat related disabilities. r. However, Combat Related Special Compensation (CRSC) is subject to a 6-year statute of limitations (31 U.S.C., Section 3702(b)). In order to receive the full retroactive CRSC entitlement, a claimant must file their CRSC claim within 6 years of any VA rating decision that could potentially make them eligible for CRSC or the date they become entitled to retired pay, whichever is more recent. If a claimant files a claim more than 6 years after initial eligibility, they are restricted to 6 years of any retroactive entitlement. s. It is therefore recommended the Board consider authorizing the applicant to apply for CRSC beyond the 6-year statute of limitations, and if CRSC is granted, receive retroactive payments for this disability and other combat related disabilities he may have incurred IAW Chapter 63, Volume 7B of Department of Defense 7000.14R, Financial Management Regulation - Combat-Related Special Compensation (CSRC). This should also include interest and COLAs. Because one criterium for receiving CRSC is that the Veteran be in a retired status (e.g., length of Service, permanent disability, etc.), this authorization could only be used by the applicant if/when he was retired. BOARD DISCUSSION: After review of the application and all evidence, the Board found partial relief is warranted. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. Based upon the preponderance of the evidence, the Board agreed the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with all relief dependent upon a final medical determination. 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 partial relief and amendment of the ABCMR's decision in Docket Number AR20110022838 dated 7 June 2012. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his type of discharge without evaluation under the IDES. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. 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 an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, 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. 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities. VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 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. Section 1556 of Title 10, United States Code, 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) AR20220005847 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1