IN THE CASE OF: BOARD DATE: 22 March 2023 DOCKET NUMBER: AR20220007913 APPLICANT REQUESTS: in effect, a physical disability separation or retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states she would like the narrative reason to be changed to service- connected disability. She suffered from a mental break down and went absent without leave (AWOL) to escape her situation. She was not a bad Soldier. She is currently seeking mental health assistance and has really bad anxiety after going through what she went through. She was raped multiple times and locked in barracks for a long period. Drugs were her escape from what was happening. Not speaking up sooner has been a regret of for 15 years and she has a feeling she wasn't the only female experiencing this. She has severe anxiety caused from the events and haven't been able to be alone at home for the past 15 years. It haunts her every day and the pain never get easier. 3. The applicant underwent a medical examination on 9 April 2005 for the purpose of enlistment. Her DD Form 2808 (Report of Medical Examination) shows she was found qualified for service and assigned a physical profile of 111111. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 4. The applicant enlisted in the United States Army Reserve on 9 April 2005 for a period of 8 years in the delayed entry program (DEP). She was discharged from the DEP enlisting in the Regular Army for a period of 4 years on 21 April 2005. She completed her required training and was assigned to Fort Hood, TX effective 26 October 2005. 5. A DA Form 4187 (Personnel Action) shows the applicant’s duty status changed from present for duty to AWOL effective 0630 hours, 22 November 2005. A second DA Form 4187 shows her status returned to present for duty effective 0900 hours, 23 November 2005. 6. A DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 24 November 2005, shows the applicant was suspected of disorderly conduct. A corresponding investigator’s statement from SPC military police (MP) states: On 24 November 2005 at 1115 hours, he responded to building 9584 for a disorderly Soldier. He met with SFC who reported he could not get control of the applicant and decided to call the MPs. The applicant was cussing at SFC and being disorderly and stating she was going to leave after she was told not to (explain like this by SFC. He explained to the applicant what she was doing was wrong. She stated she just wanted to go see her son. The unit would not let her go because she was late too many times this month. He transported the applicant to the provost marshal office (PMO) for processing. 7. A DA Form 2823 (Sworn Statement) from SGT states on 24 November 2005 around 1100, the applicant asked if she could get something to eat because she had not eaten yet. He told her she needed to wait until lunch time. She told him “You [expletive] are not going to do this to me”. He told her that she needed to watch her mouth, she raised her voice and said “you’re not my mother so I don’t need to listen to you”. CW2 told her she needed to be quiet and listen to the NCO. She told him “I’m not going to do nothing for you [expletive]”. 8. A DA Form 2823 from SFC states on 24 November 2005 at approximately 0930 hours, he entered the applicant’s room in building 87021. He was accompanied with PFC female, who was the staff duty driver. Having received a directed order from CPT Commander. Upon entering her room, he discovered her in her bed asleep. He ordered her to get cleaned up and get into uniform. She complied and he then transported her to the Aviation Brigade staff duty desk. He immediately notified CPT . During this time the applicant was completely hysterical and belligerent. She stated “I ain’t staying in no [expletive] Army building on [expletive] Thanksgiving’. His repeated order of at ease was completely ignored. She further stated, “you can’t make me do a [expletive] thing till I get a [expletive] lawyer”. She also expressed repeatedly that she intended to have everyone come into work since she cannot be with her family on Thanksgiving. The applicant has absolutely no regard for military discipline or direct orders. The applicant was extremely disorderly and disrespectful during this time period. 9. A DA Form 2823 from CW2 states on 24 November 2005, he was on duty as staff duty officer when the applicant was brought in for failing to report to duty last week. While she was sitting in the staff duty office, SGT instructed the applicant to control her language and not use profanity. The applicant then told he that she could say any [expletive] thing she wanted and that he SGT could not tell her how to talk [expletive]. He CW2 told her SGT outranked her and that he could tell her to watch her language. That is when she stated that he couldn’t tell her what the [expletive] she could say and that she would say any [expletive] thing she wanted and didn’t care if she lost her rank. Also, she told him that he could not keep her at the staff duty office. 10. A DA Form 4856 (Developmental Counseling), dated 24 November 2005, shows the applicant was counselled to inform her to be accountable at all formations, obey all lawful orders given to her by her chain of command, respect her noncommissioned officers (NCOs) and Warrant Officers, and that she will be under direct supervision through this holiday weekend and her Rear Command is recommending her for a Field Grade Article 15. She was advised she had violated Article 86 (Absent Without Leave), Article 92 (Failure to obey an order), and Article 91 (Insubordinate conduct to a Warrant Officer, NCO). Key Points of Discussion states: a. Absent without leave reflects a lack of character and responsibility. She did know that being absent without leave is a direct violation under UCMJ, Article 86. Failure to report during the Command directed times is a violation of Article 92 (Failure to obey an order). b. On 22 November the applicant and PVT failed to report to the 0630 hours accountability formation. The applicant informed CPT and SFC that she called a fellow Soldier that she and PVT were not able to get on post. She did not directly call her chain of command. SFC continually hands out alert rosters on a weekly basis, so there is no excuse as to not being able to contact her chain of command and no excuse to missing an entire duty day. c. On 23 November, SFC sent a female Soldier into the applicant’s room when she did not answer her door. When they entered her room, they found her hiding in her bathroom. She was absent without leave for one day. d. On 23 November, the applicant, and PVT were told by SFC to stay put until further notice in the orderly room. When CPT and SFC came out of the Brigade meeting she and PVT were gone. This is a violation of Article 92 (Failure to obey an order). She is considered a flight risk. e. On 24 November, after apprehending the applicant in her room, SFC took her to the Brigade Staff Duty. There she told CW4 and SGT "you [explicit] can't tell me what you do." CW4 told her to watch her language and she told him that she could say whatever she wanted. This is a direct violation of Article 91 (Insubordinate conduct to a Warrant Officer, NCO). f. The applicant will be monitored for an undetermined period of time. From this point in time until further notice she is strictly confined to the Brigade Building under direct supervision of a NCO. She will obey all lawful orders given to her by her NCO escort and give him the respect and courtesy that an NCO is entitled to. She is confined to the Brigade Building under direct supervision. She may only leave the Brigade Building with and NCO escort to eat at the DFAC and pick up personal items from her barracks room. If she decides to go AWOL again, she may be submitted for court martial. which could result in her spending time in Ft. Leavenworth and having a criminal record on file. Also, she may receive an other than honorable separation. This type of separation will greatly affect her ability to obtain civilian employment. 11. A DA Form 4187 shows her duty status changed to AWOL effective 0630 hours, 5 December 2005. A second DA Form 4187 shows she was dropped from the rolls effective 0630 hours, 5 December 2005. A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) was issued on 6 January 2006 declaring the applicant a deserter. 12. On or about 9 January 2005, CPT preferred charges against the applicant. A DD Form 458 (Charge Sheet) shows the following charges: * violation of Article 85 (Desertion) in that the applicant did on or about 5 January 2006 without authority and with intent to remain away therefrom permanently, absent herself from her unit and did remain so absent in desertion * violation of Article 86 (AWOL) in that the applicant did on or about 5 December 2005 absent herself from her unit and did remain so absent 13. A DD Form 616 (Report of Return of Absentee) shows the applicant was apprehended by the Police Department, MO at 1001 hours on 8 February 2006 and returned to military control. 14. A Report to Suspend Favorable Personnel Actions (Flag) was issued on 16 February 2006. 15. A DA Form 4856, dated 25 February 2006, shows the applicant was counseled to explain the nature of her status returning from AWOL/Deserter status and to inform her that the Chain of Command intends to pursue a chapter 14 for misconduct. It also states: a. The applicant was reported AWOL on 5 December 2005 and was subsequently dropped from the rolls on 5 January 2006. She is not reassigned back to her unit. The Chain of Command will pursue a chapter 14 discharge for misconduct. She will be assigned a room in the barracks. She is required to sign in at the CQ desk every two hours without fail. She is reporting to the NCO on duty at the barracks. Her off-post privileges are hereby suspended until further notice. She will not leave the boarder of Fort Hood for any reason. She may consider this a direct order. She is to stay in duty uniform at all times unless inside her barracks room. No exceptions. Failure to abide by this counseling will be considered disobeying a lawful order and more changes will be added. b. This counseling statement has been furnished, not as a punitive measure, but as an administrative measure to stress continued behavior of the same or similar nature may result in initiation of action eliminating her from the Army. Such action may result in the issuance of either an honorable, general or other than honorable discharge. If she received a general or other than honorable discharge, this could result in the possible loss of some or all veteran benefits and substantial prejudice in obtaining civilian employment. c. The applicant disagreed with the information and requested to speak to an attorney. 16. The applicant underwent a mental status evaluation on 2 March 2006 due to her misconduct. The Report of Mental Status Evaluation shows her behavior was found normal and she was fully alert and oriented. Her mood was unremarkable with clear thinking process and thought content, and good memory. She was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible and meets the retention requirements of chapter 3, AR 40-501 (does not have an unfitting diagnosis that would require medical evaluation board (MEB)). Her diagnosis states occupational problem. The evaluation revealed no evidence of suicidal or homicidal behavior, altered thought process or any other mental health condition that would explain the behavior that resulted in the initiation of this administrative action. She is psychologically cleared for any administrative action deemed appropriate by command. 17. A DA Form 2627 (Record of Proceedings under Article 15, UCMJ) shows the applicant accepted nonjudicial punishment on 8 March 2006 for the following: * on or about 24 November 2005, were disrespectful in language toward CW2 violation of Article 91, UCMJ * on or about 23 November 2005 having received a lawful order from SFC willfully disobey an order, violation of Article 91 * on or about 22 November 2005, without authority, failed to go at the time prescribed to appointed place of duty, to wit: 0630 accountability formation, violation of Article 86 18. A DD Form 2807-1 (Report of Medical History), dated 8 March 2006, shows the applicant reported she was in good health. A DD Form 2697 (Report of Medical Assessment) show she reported she is currently pregnant. She indicated she had no additional condition or concerns about her health. 19. A DD Form 2808, dated 23 March 2006, shows the applicant had no significant defects and assigned a physical profile of 111111. 20. The applicant received Notification of Separation Under AR 635-200, Chapter 14- 12c, Commission of a Serious Offense on 23 March 2006. The reasons for the proposed action are she absent herself from her unit from 22 November 2005 to 23 November 2005. She was AWOL from 5 December 2005 to 27 February 2006. She also disobeyed a Noncommissioned Officer and were disrespectful to a Commissioned Officer on or about 24 November 2005. As a result of her disorderly conduct, she was apprehended by military authorities. She was advice she was recommended for a general under honorable conditions discharge. She was advised of her right to consult with counsel, submit written statement on her behalf, obtain copies of documents, and she may waive her rights in writing. She acknowledged receipt of notification with her signature. 21. After consulting with counsel on 24 March 2006, the applicant elected not to submit statements on her own behalf. She indicated she understood she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued, and as a result of issuance of a discharge under other than honorable conditions she may be ineligible for many or all benefits as a veteran under both Federal and State laws and that she may expect to encounter substantial prejudice in civilian life. She understood she may be ineligible to reenlist. 22. The applicant’s administrative separation was approved on 30 March 2006 with a character of service of general under honorable conditions. 23. The applicant was discharge on 4 April 2006 under the provisions of AR 635-200, paragraph 14-12C for misconduct (serious offense). 24. The applicant petitioned the Army Discharge Review Board (ADRB) on 30 March 2017 for upgrade of her character of service to honorable. The Board’s Medical Officer, a voting member, reviewed available medical documentation and indicated the applicant did not have any behavior health (BH) diagnosis while on active duty. Department of Veteran Affairs (VA) records indicate that the applicant was homeless and living with family in a car as of September 2018, but VA records also indicate the applicant has had not a BH diagnosis that was mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 25 January 2019, and by a 3-2 vote, the board denied the request upon finding the separation was both proper and equitable. However, while the Board found her separation was both proper and equitable, the Deputy Assistant Secretary of the Army (Review Boards) found sufficient evidence to upgrade the characterization of service to honorable, change the narrative reason to misconduct (minor infractions), change the separation authority to AR 365- 200 paragraph 14-12a, and separation code to JKN. The directed corrections were issued on 28 March 2019. 25. On 1 November 2022, the ABCMR requested the Criminal Investigation Division (CID), Crime Records Center to provide a sanitized report of investigation for military sexual trauma related to the applicant. On 2 November 2022, CID responded no records exist pertaining to the applicant. 26. 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. 27. 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. 28. 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. 29. 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. 30. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting, in effect, a physical disability separation retirement. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 21 April 2005; 2) Her duty status changed from present for duty to AWOL on 22 November 2005 and from AWOL to present for duty on 22 November 2005; 3) On 24 November 2005 she was suspected of disorderly conduct and transported to the provost marshal’s office by military police; 4) On 24 November 2005 she received a Developmental Counseling for multiple infractions as outlined in the ROP; 5) On or about 9 January 2005 charges were preferred against her for violation of Article 85 (Desertion) from on or about 5 January 2006, and violation of Article 86 (AWOL) from on or about 5 December 2005; 6) A Flag was issued against her on 16 February 2006; 7) She accepted NJP under provisions of Article 15 of the UCMJ on 8 March 2006 for disrespect toward a CW2, willfully disobeying a lawful order from an SFC, and failure to go to her prescribed place of duty at the prescribed time; 8) The applicant received notification of separation under AR 635-200, Chapter 14-12c, commission of a serious offense on 23 March 2006; 9) The applicant was discharged on 4 April 2006 under the provisions of AR 635-200, paragraph 14-12C for misconduct. c. The electronic military medical record, AHLTA, VA electronic medical record, JLV, and ROP were reviewed. A review of AHLTA showed the applicant underwent a Mental Status Evaluation (Chapter Evaluation) on 2 March 2006 due to misconduct. She was psychiatrically cleared for any administrative action deemed appropriate by command. She was diagnosed with Occupational Problems. A review of JLV showed the applicant is not service-connected, and records were void of a BH-related treatment history. Records did show the applicant reported homelessness in September 2018 and routinely reached out for housing assistance through January 2023. She has a diagnosis of Housing Instability. d. The applicant is requesting physical disability retirement and contends her AWOL was a result of MST, resulting in a mental breakdown. A review of the records showed the applicant was diagnosed with Occupational Problems while on Active Duty and has a diagnosis of Housing Instability at the VA. Records are void of a trauma-related diagnosis and CID criminal records search related to military sexual traumas was void of any records related to the applicant. Given the above, it is the opinion of this medical advisor that there is no evidence in the records to support the applicant had a condition that warranted separation through military medical channels, per AR 40-501, Chapter 3, at the time of her separation. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends she experienced MST and is requesting physical disability retirement. 2. Did the condition exist or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant is requesting physical disability retirement and contends her AWOL was a result of MST, resulting in a mental breakdown. A review of the records showed the applicant was diagnosed with Occupational Problems while on Active Duty and has a diagnosis of Housing Instability at the VA. Records are void of a trauma-related diagnosis and CID criminal records search related to military sexual traumas was void of any records related to the applicant. Given the above, it is the opinion of this medical advisor that there is no evidence in the records to support the applicant had a condition that warranted separation through military medical channels, per AR 40-501, Chapter 3, at the time of her separation. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered 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 of the applicant’s petition, available military records and the medical review, the Board concurred with the advising official finding there is no evidence in the records to support the applicant had a condition that warranted separation through military medical channels, per AR 40-501, Chapter 3, at the time of her separation. The Board determined there was insufficient evidence and the records are void of a trauma-related diagnosis and CID criminal records search related to military sexual traumas was void of any records related to the applicant. 2. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. The Board determined the applicant was diagnosed with Occupational Problems while on Active Duty and has a diagnosis of Housing Instability at the VA. The Board found based on the preponderance of evidence the applicant’s contentions for physical disability retirement is without merit. Therefore, the Board denied relief. 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. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-12a (Minor disciplinary infractions) states a pattern of misconduct consisting solely of minor military disciplinary infractions. Except as provided in paragraph 11–3c, if separation of a soldier in entry-level status is warranted solely by reason of minor disciplinary infractions, the action will be processed under chapter 11. d. Paragraph 14-12c (Commission of a serious offense) states soldiers are subject to separation action per this section for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM. Abuse of illegal drugs is serious misconduct. 3. 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 UOTHC 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. 4. 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, or sexual harassment. Boards are 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. 5. 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. Section 1556 of Title 10, U.S. 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) AR20220007913 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1