IN THE CASE OF: 

		BOARD DATE: 14 February 2023

		DOCKET NUMBER: AR20220007404


APPLICANT REQUESTS:  physical disability retirement or, in effect, early retirement 
under Temporary Early Retirement Authority (TERA) in lieu of physical disability 
separation with severance pay.

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

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

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:

     a.  After serving for 15 years, 8 months, and 4 days, he was medically separated 
with a 20 percent disability rating for his ankles. He contends that the Army purposely 
gave him a 20 percent rating to medically separate him instead of giving him a medical 
retirement. At that time, in 2016, he would have been otherwise eligible for a retirement 
based on having over 15 years  time in service.

     b.  He believes the Army did not adequately rate his ankles and although he 
accepted the findings of the Medical Evaluation Board (MEB) in 2016, he believes it was 
incorrect. Also, some of his ailments should be attributed to combat deployments in Iraq 
and Afghanistan.

     c.  He is asking the Board to review his record and award him a medical retirement, if 
the Army percentage was incorrect or to retire him early after having completed almost 
16 years of honorable service.

3.  The applicant enlisted in the Regular Army on 3 April 2001.
4.  The applicant deployed during the following timeframes to the following locations:

*	Afghanistan, from 4 April 2004 through 31 March 2005
*	Iraq, from 28 October 2006 through 15 January 2008
*	Iraq from 2 February 2009 through 31 January 2010

5.  The applicant s DA Form 3349 (Physical Profile), DA Form 7652 (Disability 
Evaluation System (DES) Commander s Performance and Functional Statement), 
Medical Evaluation Board (MEB) Narrative Summary (NARSUM), DA Form 3947 (MEB 
Proceedings), Department of Veterans Affairs (VA) Compensation and Pension (C&P) 
Exam, and VA Proposed Rating Decision are not in his available records for review and 
have not been provided by the applicant.

6.  A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows the 
following:

     a.  A PEB convened on 12 August 2016 where the applicant was found physically 
unfit with a recommended rating of 20 percent and that his disposition be separation 
with severance pay.

     b.  The applicant s medical conditions determined to be unfitting are as follows:

     		(1)  Right Achilles tendonitis (MEB diagnosis (Dx) 1); rating 10 percent; the onset 
occurred in 2011 while the applicant was stationed in the Continental U.S. (CONUS); 
method of injury unknown. The applicant was found unfit because his DA Form 3349 
physical profile limitations associated with this condition made him unable to reasonably 
perform his Military Occupational Specialty (MOS). His condition prevented him from 
performing functional activity (1) moving 40 pounds while wearing usual protective gear 
(helmet, weapon, body armor, and load-bearing equipment at least 100 yards.

     		(2)  Left Achilles tendonitis (MEB Dx 2); rating 10 percent; the onset occurred in 
2011 while the applicant was stationed CONUS; method of injury unknown. The 
applicant was found unfit because his DA Form 3349 physical profile limitations 
associated with this condition made him unable to reasonably perform his Military 
Occupational Specialty (MOS). His condition prevented him from performing functional 
activity (1) moving 40 pounds while wearing usual protective gear (helmet, weapon, 
body armor, and load-bearing equipment at least 100 yards.

     c.  The applicant was found fit for the following conditions because the PEB indicates 
these conditions meet retention standards, do not cause physical profile limitations of 
functional activities, and there is no indication of performance issues due to these 
conditions:

*	obstructive sleep apnea with continuous positive airway pressure (CPAP) (MEB 
Dx 3)
*	gastroesophageal reflux disease (GERD) (MEB Dx 4)
*	other specified trauma and stressor related disorder (Mild symptoms of intrusive 
re-experiencing and avoidance with trauma-related changes in mood and 
cognition or hyperarousal) (MEB Dx 5)
*	right sensorineural hearing loss (in the frequency range of 600 hertz or higher 
(MEB Dx 6)
*	subjective tinnitus (MEB Dx 7)
*	multiple lipomas (benign tumors of fat tissue)(MEB Dx 8)
*	traumatic brain injury (TBI)/TBI mild (MEB Dx 9)
*	bilateral knee patellofemoral syndrome (MEB Dx 10)
*	right shoulder rotator cuff tendinitis (MEB Dx 11)
*	status post right foot surgery with residual mild numbness on lateral aspect of 
right foot (MEB Dx 12)
*	scar right foot (MEB Dx 13)

     d.  The PEB made the following determinations:

     		(1)  The disability disposition was not based on disease or injury incurred in the 
line of duty (LOD) in combat with an enemy of the U.S. and as a direct result of armed 
conflict or caused by an instrumentality of war and incurred in the LOD during a period 
of war.

     		(2)  The disability did not result from a combat-related injury.

     		(3)  The disability severance pay was not awarded for disability incurred in a 
combat zone or incurred while performing combat-related operations as designated by 
the Secretary of Defense.

     e.  On 16 August 2016, after having been advised of the findings and 
recommendations of the PEB and having received a full explanation of the results, the 
applicant concurred with the findings and recommendations and waived a formal 
hearing of his case. He did not request reconsideration of his VA ratings.

7.  U.S. Army Garrison, Fort Belvoir Orders 252-0013, dated 8 September 2016, 
reassigned the applicant to the U.S. Army transition point for transition processing with 
an honorable discharge due to disability rated at 20 percent with severance pay based 
on 15 years, 8 months, and 4 days of net service effective 6 December 2016.

8.  The applicant s DD Form 214 shows he was honorably discharged on 4 December 
2016, due to disability with severance pay, non-combat (enhanced), after 15 years, 
8 months, and 2 days of net active service.

9.  On 7 October 2022, an official from the Army Review Boards Agency (ARBA) 
requested the applicant provide a copy of the medical documentation that supports his 
medical health claims, but he did not respond.

10.  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 an 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.  
He states:

 After serving for 15 years 8 months and 4 days, SFC {Applicant} was medically 
separated with a 20 percent rating for his ankles.  I contend that the Army 
purposely gave me a 20 percent rating to medically separate me instead of a 
medical retirement.  During this time, 2016, I would have been otherwise eligible 
for a retirement, based off of being over 15 years TIS {time in service}.

I am asking the board to review my record and award a medical retirement, if the 
Army percentage was incorrect or if I could have been retired early for having 
completed almost 15 years of service honorably. 

    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 3 April 2001 and was separated with $133,718.40 of 
disability severance pay on 4 December 2016 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 27 April 2016, the applicant was referred to the IDES for  Right Achilles 
tendonitis.    He claimed twelve additional conditions on a separate Statement in 
Support of Claim (VA form 21-4138), including left Achilles tendonitis.  A medical 
evaluation board (MEB) determined both his right and left Achilles tendonitis failed the 
medical retention standards of AR 40-501, Standards of Medical Fitness.  They 
determined eleven other medical conditions met medical retention standards.  On 13 
June 2016, the applicant agreed with the MEB s findings and recommendation and his 
case was forwarded to a physical evaluation board (PEB) for adjudication.

    f.  On 12 August 2016, the applicant s informal PEB found his right Achilles tendonitis 
and left Achilles tendonitis to be unfitting medical conditions for continued service.  They 
determined the remaining eleven medical conditions were not unfitting for continued 
military service.   The PEB applied the VBA derived ratings of 10% to each disability for 
a combined military disability rating or 20%  

    g.  The VA rating decision narrative is the same for both conditions.  For the right 
ankle:

 Service connection for Right Achilles tendonitis is proposed as directly related to 
military service.
We have assigned a 10 percent evaluation for your Right Achilles tendonitis 
based on:

  Moderate limitation of motion of the ankle based on dorsiflexion less than 
15 degrees

Additional symptom(s) include:
      
        Objective evidence of tenosynovitis

The provisions of 38 CFR  4.40 and  4.45 concerning functional loss due to 
pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as 
cited in DeLuca v. Brown and Mitchell v. Shinseki, have been considered and are 
not warranted.

This is the highest schedular evaluation allowed under the law for tenosynovitis.
Additionally, a higher evaluation of 20 percent is not warranted for limitation of 
motion of the ankle unless the evidence shows:

  Marked limitation of motion of the ankle based on dorsiflexion less than 5 
degrees or plantar flexion less than 10 degrees. 

    h.  Because the applicant s combined military disability rating was less than 30%, the 
PEB recommended the applicant be separated with disability severance pay.  On 16 
August 2016, 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.  

    i.  Review of his DES case file in ePEB and his records in AHLTA identified no 
additional medical condition(s) which would have failed the medical retention standards 
of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge.  Thus, 
there was no cause for referral to the Disability Evaluation System.  Furthermore, there 
is no evidence that any additional medical condition prevented the applicant from being 
able to reasonably perform the duties of his office, grade, rank, or rating prior to his 
discharge.

    j.  Review of his records in JLV shows he has been awarded multiple VA service-
connected disability ratings.  However, the DES compensates an individual only for 
service incurred medical condition(s) which have been determined to disqualify him or 
her from further military service.  The DES has neither the role nor the authority to 
compensate service members for anticipated future severity or potential complications 
of conditions which were incurred or permanently aggravated during their military 
service; or which did not cause or contribute to the termination of their military career.  
These roles and authorities are granted by Congress to the Department of Veterans 
Affairs and executed under a different set of laws.

    k.  It is the opinion of the ARBA Medical Advisor that a neither an increase in his 
military disability rating, a change in his disability discharge disposition, nor a referral of 
his case back to the DES is warranted.     

BOARD DISCUSSION:

After reviewing the application, all supporting documents, and the evidence found within 
the military record, the Board found that relief was not warranted. The applicant s 
contentions, the military record, and regulatory guidance were carefully considered. The 
Board noted that a PEB convened on 12 August 2016 where the applicant was found 
physically unfit with a recommended rating of 20 percent and that his disposition be 
separation with severance pay. The Board reviewed and agreed with the advisory 
official s finding that although the applicant has been awarded multiple VA service-
connected disability ratings, the military s disability evaluation system compensates an 
individual only for service incurred medical condition(s) which have been determined to 
disqualify him or her from further military service. The VA on the other hand, has the 
role and 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. The Board determined that neither an increase in his military 
disability rating, or a change in his disability discharge disposition, nor a referral of his 
case back to the disability evaluation system is warranted. 
?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

GT:	ME:	SM:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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

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


REFERENCES:

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

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

	a.  Soldiers are referred to the disability system when they no longer meet medical 
retention standards in accordance with Army Regulation 40-501 (Standards of Medical 
Fitness), chapter 3, as evidenced in a Medical Evaluation Board (MEB); when they 
receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an 
Military Occupational Specialty (MOS) Medical Retention Board; and/or they are 
command-referred for a fitness-for-duty medical examination.

	b.  The disability evaluation assessment process involves two distinct stages: the 
MEB and Physical Evaluation Board (PEB). The purpose of the MEB is to determine 
whether the service member's injury or illness is severe enough to compromise his/her 
ability to return to full duty based on the job specialty designation of the branch of 
service. A PEB is an administrative body possessing the authority to determine whether 
or not a service member is fit for duty. A designation of "unfit for duty" is required before 
an individual can be separated from the military because of an injury or medical 
condition. Service members who are determined to be unfit for duty due to disability 
either are separated from the military or are permanently retired, depending on the 
severity of the disability and length of military service. Individuals who are "separated" 
receive a one-time severance payment, while veterans who retire based upon disability 
receive monthly military retired pay and have access to all other benefits afforded to 
military retirees.

	c.  The mere presence of a medical impairment does not in and of itself justify a 
finding of unfitness. In each case, it is necessary to compare the nature and degree of 
physical disability present with the requirements of the duties the Soldier may 
reasonably be expected to perform because of his or her office, grade, rank, or rating.  
Reasonable performance of the preponderance of duties will invariably result in a 
finding of fitness for continued duty. A Soldier is physically unfit when a medical 
impairment prevents reasonable performance of the duties required of the Soldier's 
office, grade, rank, or rating.

3.  Army Regulation 635-40 establishes the Army Disability Evaluation System and sets 
forth policies, responsibilities, and procedures that apply in determining whether a 
Soldier is unfit because of physical disability to reasonably perform the duties of his 
office, grade, rank, or rating. Only the unfitting conditions or defects and those which 
contribute to unfitness will be considered in arriving at the rated degree of incapacity 
warranting retirement or separation for disability.

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

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

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

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

     c.  The percentage assigned to a medical defect or condition is the disability rating. A 
rating is not assigned until the PEB determines the Soldier is physically unfit for duty. 
Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating 
Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does 
not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one 
which renders the Soldier unable to perform the duties of their office, grade, rank, or 
rating in such a way as to reasonably fulfill the purpose of their employment on active 
duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a 
physical condition which is not in itself considered disqualifying for military service when 
a Soldier is found unfit because of another condition that is disqualifying. Only the 
unfitting conditions or defects and those which contribute to unfitness will be considered 
in arriving at the rated degree of incapacity warranting retirement or separation for 
disability.

4.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a 
member who has at least 20 years of service or a disability rating of at least 30 percent.  
Title 10, U.S. Code, section 1203, provides for the physical disability separation of a 
member who has less than 20 years of service and a disability rating of less than 30 
percent.

5.  Army Directive 2016-27 (Temporary Early Retirement Authority (TERA)), dated 
23 June 2016, implements TERA for Soldiers described in paragraph 4 of this directive, 
consistent with the National Defense Authorization Act for Fiscal Year 1993, Public Law 
Number 102-484, section 4403, 106 statute 2702-04, as extended by the National 
Defense Authorization Act for Fiscal Year 2012, Public Law Number 112-81, section 
504, 125 Statute 1389-91, to include Active Guard Reserve (AGR) Soldiers.

     a.  Retirement with at least 20 years of service has been and will continue to be the 
basic entitlement for those personnel who complete a career in the Army. TERA is a 
discretionary authority and not an entitlement.

     b.  Paragraph 4 provides the criteria for Soldiers to be eligible to request TERA in 
lieu of involuntary separation, involuntary release from active duty, or involuntary 
release from active service. The first 10 criteria all pertain to officers and warrant 
officers. The enlisted criteria are as follows:

     		(1)  Enlisted members of the Army who were selected to be involuntarily 
separated as a result of a Qualitative Service Program and who, on the date they are to 
be discharged, have at least 15 years but less than 20 years of service, as computed 
under Title 10, U.S. Code, section 3925, and

     		(2)  Enlisted members serving in the AGR Program who were selected to be 
involuntarily released form active duty or active service as a result of an AGR Release 
from Active Duty (REFRAD) Board and who, on the date they are to be discharged, 
have at least 15 years but less than 20 years of service, as computed under Title 10, 
U.S. Code, section 3925.

     c.  Only individuals who meet the eligibility criteria in paragraph 4 are eligible for 
retirement pursuant to TERA. These criteria may not be waived. This directive is 
applicable as specifically stated and is not intended to extend retirement eligibility under 
TERA or sanctuary to other populations of Soldiers. This directive does not otherwise 
modify the ability of Soldiers to apply for retirement under existing law and policy.

     c.  Soldiers pending evaluation for disability retirement under Title 10, U.S. Code, 
chapter 61 are not eligible for early retirement under this directive.

6.  Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that 
an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be 
provided with a copy of any correspondence and communications (including summaries 
of verbal communications) to or from the Agency with anyone outside the Agency that 
directly pertains to or has material effect on the applicant's case, except as authorized 
by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian 
and military medical and behavioral health professionals and are therefore internal 
agency work product. Accordingly, ARBA does not routinely provide copies of ARBA 
Medical Office recommendations, opinions (including advisory opinions), and reviews to 
Army Board for Correction of Military Records applicants (and/or their counsel) prior to 
adjudication.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220007404


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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