IN THE CASE OF: 

		BOARD DATE: 14 February 2023

		DOCKET NUMBER: AR20220006821


APPLICANT REQUESTS: in effect, 

*	Physical disability retirement in lieu of separation with severance pay
*	refund of Department of Veteran Affairs (VA) recoupment of severance pay
*	a personal appearance before the Board

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

*	DD Form 149 (Application for Correction of Military Record)
*	VA summary of benefits letter, 31 January 2022
*	VA summary of benefits letter, 19 April 2022
*	VA service-connected disability compensation letter, 19 April 2022
*	VA commissary store and exchange privileges letter, 19 April 2022
*	eBenefits disabilities printout, 19 April 2022
*	MRI findings, 10 February 2022

FACTS:

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

2.  The applicant states he was removed from the Temporary Disability Retired List 
(TDRL) and awarded 20 percent for his disability. That same year, the VA awarded him 
100 percent for the same injury. He is rated total and permanent with the VA. The Army 
gave him $28,000.00 severance pay, which he had to pack back in full at $500.00 a 
month to be eligible to receive VA compensation. The disability board awarded him 10 
percent, he appealed it, and it was raised to 20 percent. The 20 percent disability rating 
for his back injury received while in the line of duty is incorrect. He should have his 
money refunded that he had to repay, and the percentage of disability increased.  

3.  The applicant enlisted in the Army National Guard of the United States and the State 
of Alabama for a period of 8 years on 10 April 1985. He was honorably discharged from 
the Army National Guard of Alabama on 28 July 1986 for transfer to the Army National 
Guard of another state. He was credited 1 year 3 months 10 days total service for pay.  

4.  The applicant immediately enlisted in the Army National Guard of the United States 
and the State of Alaska for a period of 6 years, 8 months, 11 days on 29 July 1986.

5.  The applicant’s official military personnel record (OMPF) is incomplete and does not 
contain a copy of the applicant’s disability evaluation system documents.  

6.  Orders 288-001 show the applicant released from assignment and duty effective 31 
December 1999 because of physical disability incurred while entitled to basic pay. He 
was placed on the TDRL effective 1 January 2000 with a rating of 40 percent.  

7.  Orders 005-014 shows the applicant was discharged from the Army National Guard 
and assigned to the Retired Reserve effective 31 December 1999. He was credited 14 
years 8 months 21 days total service for retired pay.  

8.  The applicant provided:  

	a.  Two (2) VA summary of benefits letters, dated 31 January 2022 and 
19 April 2022, showing a combined service-connected evaluation of 100 percent 
effective 1 December 2021, and he became totally and permanently disabled effective 
7 August 2014. 

	b.  A VA service-connected disability compensation letter, dated 19 April 2022, also 
showing a combined service-connected evaluation of 100 percent effective 
1 December 2021. 

	c.  A VA commissary store and exchange privileges letter, dated 19 April 2022, 
resulting from being totally and permanently disabled. 

	d.  eBenefits disabilities printout, dated 19 April 2022, showing service connection 
for the following ratings and conditions:  

•	40 percent for degenerative disc disease at L5-S 1, status post laminectomies 
and disc fusion
•	40 percent for lumbar radiculopathy to the right lower extremity
•	40 percent for lumbar radiculopathy to the left lower extremity
•	0 percent for onychomycosis of toenails and tinea ingium, hands
•	0 percent for lumbar spine surgical scar
•	0 percent for internal hemorrhoids
•	70 percent for post-traumatic stress disorder (PTSD) and depressive disorder

	e.  Medical findings, dated 10 February 2022, for an MRI of the applicant’s lumbar 
spine without contrast. The findings state: the localizer images show a chronic 
compression fracture of T6, and there is kyphosis of the thoracic spine at this level.  
There is mild degenerative disease in the cervical spine, and there are five lumbar 
vertebrae. 

9.  Based on the applicant's contention the Army Review Boards Agency (ARBA) 
medical staff provided a medical review for the Board members. See "MEDICAL 
REVIEW" section.  

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

11.  Title 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.  

12.  Title 38, CFR, 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 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.

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

14.  MEDICAL REVIEW:

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

“I was taken off the Temporary Disability Retirement list and awarded 20% for my 
disability.  That same year the Veterans Administration awarded me 100% 
disability for the same injury.  I am rated total and permanent with the Veterans 
Administration. The Army gave me $28,000.00 severance pay which I had to pay 
back in full at $500.00 dollars a month to be eligible to receive VA 
compensation.”

    b.  The Record of Proceedings and his previous ABCMR denial detail the applicant’s 
military service and the circumstances of the case.  The applicant’s final National Guard 
Report of Separation and Record of Service (NGB Form 22) shows he was honorably 
discharged for on 31 December 1999 under paragraph 8-27m of NGB 600-200, Enlisted 
Personnel Management: Placement on the Temporary disability Retirement List.  
Orders published 15 October 1999 show the applicant was Placed on the Temporary 
Disability Retirement List with a 40% military disability rating effective 1 January 2000.  

    c.  When a Service Member is separated from their Service with disability severance 
pay and then receives VA compensation for the disability(s), the severance pay is 
incrementally recouped from their total VA disability compensation unless one or more 
or the disabilities was combat related or incurred in a hazardous duty pay area.

    d.  Supporting documentation contains VA documentation showing the applicant has 
a combined VA service-connected disability rating of 100% and “became totally and 
permanently disabled due to your service-connected disabilities” effective 7 August 
2014 with a total of seven service-connected disabilities.

    e.  Neither the Physical Evaluation Board (PEB) Proceedings (DA Form 199) for his 
placement on nor subsequent removal from the TDRL are in the supporting 
documentation or iPERMS.  Orders removing him from the TDRL were not in the 
supporting documentation or uploaded into iPERMS.

    f.  There is a presumption of regularity in the conduct of governmental affairs which is 
applied in any review of governmental action.  It holds that any action taken by the 
government is legal until evidence is provided that shows that it is not legal. Unless 
there is substantial credible evidence to rebut the presumption, the governmental action 
is presumed to have been administered correctly.  The applicant bears the burden of 
overcoming this presumption through the presentation of substantial and credible 
evidence to support his issue.  There is no evidence in the record nor has the applicant 
produced sufficient evidence to support the contention that he was unjustly discharged 
from the Army.  The applicant's statements alone do not overcome the government's 
presumption of regularity.

    g.  It is the opinion of the Agency Medical Advisor that neither a change in his military 
disability disposition nor a referral of his case to the DES is warranted.  

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The applicant’s 
contentions, the military record, and regulatory guidance were carefully considered. 

	a.  The applicant's request for a personal appearance hearing was carefully 
considered. In this case, the evidence of record was sufficient to render a fair and 
equitable decision. As a result, a personal appearance hearing is not necessary to 
serve the interest of equity and justice in this case.

	b.  The Board noted that the details of his disability separation are not available. 
However, he was issued orders separating him on 31 December 1999 due to physical 
disability and placing him on the TDRL effective 1 January 2000 with a combined rating 
of 40%. The Board reviewed and agreed with the medical advisor’s finding that in the 
absence of all the facts, the presumption of regularity is applied. It means any action 
taken by the Army is presume dot be legal and correct unless evidence is provided to 
the contrary. The applicant bears the burden of overcoming this presumption through 
the presentation of substantial and credible evidence to support his issue. The Board 
found no evidence in the record nor has the applicant produced sufficient evidence to 
support the contention that he was unjustly discharged from the Army. The Board also 
determined that the applicant's statements alone do not overcome the presumption of 
regularity. The Board determined that neither a change in his military disability 
disposition nor a referral of his case to the disability evaluation system is warranted.  

	c.  The Board has no authority to ask the VA to refund the severance pay. The VA 
has its own rules and regulations regarding recoupment of separation pay, severance 
pay, and/or retired pay. The VA is required by law to withhold disability compensation 
payments for servicemembers who received a disability severance payment when they 
separated from the military (Chapter 61).
?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice.  Therefore, the Board determined the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned.

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


REFERENCES:

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

2.  Title 10, USC, chapter 61, provides the Secretaries of the Military Departments with 
authority to retire or discharge a member if they find the member unfit to perform military 
duties because of physical disability. The U.S. Army Physical Disability Agency is 
responsible for administering the Army physical 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.

3.  Title 38 USC, section 1110 (General - Basic Entitlement) states for disability resulting 
from personal injury suffered or disease contracted in line of duty, or for aggravation of 
a preexisting injury suffered or disease contracted in line of duty, in the active military, 
naval, or air service, during a period of war, the United States will pay to any veteran 
thus disabled and who was discharged or released under conditions other than 
dishonorable from the period of service in which said injury or disease was incurred, or 
preexisting injury or disease was aggravated, compensation as provided in this 
subchapter, but no compensation shall be paid if the disability is a result of the veteran's 
own willful misconduct or abuse of alcohol or drugs.

4.  Title 38 USC, section 1131 (Peacetime Disability Compensation - Basic Entitlement) 
states for disability resulting from personal injury suffered or disease contracted in line 
of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of 
duty, in the active military, naval, or air service, during other than a period of war, the 
United States will pay to any veteran thus disabled and who was discharged or released 
under conditions other than dishonorable from the period of service in which said injury 
or disease was incurred, or preexisting injury or disease was aggravated, compensation 
as provided in this subchapter, but no compensation shall be paid if the disability is a 
result of the veteran's own willful misconduct or abuse of alcohol or drugs.

5.  AR 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.  Once a determination of physical unfitness is 
made, all disabilities are rated using the Department of Veterans Affairs Schedule for 
Rating Disabilities (VASRD).

	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.

6.  AR 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). 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.

7.  Section 1556 of Title 10, USC, 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.

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

9.  On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs 
and BCM/NRs when considering requests by Veterans for modification of their 
discharges due in whole, or in part, to: mental health conditions, including PTSD; 
traumatic brain injury; sexual assault; sexual harassment. Boards were directed to give 
liberal consideration to Veterans petitioning for discharge relief when the application for 
relief is based in whole or in part on those conditions or experiences. The guidance 
further describes evidence sources and criteria and requires Boards to consider the 
conditions or experiences presented in evidence as potential mitigation for that 
misconduct which led to the discharge.

10.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency 
determinations. Clemency generally refers to relief specifically granted from a criminal 
sentence. BCM/NRs may grant clemency regardless of the type of court-martial. 
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice. This guidance does not mandate 
relief, but rather provides standards and principles to guide Boards in application of their 
equitable relief authority. In determining whether to grant relief based on equity, 
injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, 
external evidence, sworn testimony, policy changes, relative severity of misconduct, 
mental and behavioral health conditions, official governmental acknowledgement that a 
relevant error or injustice was committed, and uniformity of punishment. Changes to the 
narrative reason for discharge and/or an upgraded character of service granted solely 
on equity, injustice, or clemency grounds normally should not result in separation pay, 
retroactive promotions, and payment of past medical expenses or similar benefits that 
might have been received if the original discharge had been for the revised reason or 
had the upgraded service characterization.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army acting through the ABCMR. 

     a.  The ABCMR begins its consideration of each case with the presumption of 
administrative regularity. The applicant has the burden of proving an error or injustice by 
a preponderance of the evidence.

     b.  Paragraph 2-11 states applicants do not have a right to a formal hearing before 
the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice 
requires.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220006821


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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