IN THE CASE OF: BOARD DATE: 11 April 2023 DOCKET NUMBER: AR20220008658 APPLICANT REQUESTS: * physical disability retirement vice separation due to expiration of term of service (ETS) * retroactive compensation/pay with an effective date of 3 July 1986 * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) benefits summary letter, 22 June 2018 * Congressional Representative Privacy Release Form 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 injured on active duty and transferred to Walter Reed Medical Center, Washington, DC, for 78 days. After being released he was separated from the Army without any consideration of a medical evaluation board (MEB) or physical evaluation board (PEB). Due to the severity and chronic nature of his in-service injury he has not been employed since separating from the military. The VA has granted him a total permanent disability [rating] for his injuries. 3. The applicant provided a VA benefits summary letter confirming he has combined service-connected VA disabilities evaluated at 100 percent, effective 11 March 2017. His rated disabilities are not listed. 4. The applicant’s service record shows: a. On 5 July 1983, he enlisted in the Regular Army for a period of 3 years. His Personnel Qualification Record shows he completed one station unit training at Fort Benning, GA, and he was awarded military occupational specialty (MOS) 11B (Infantryman). He also completed basic airborne training at Fort Benning and was awarded the Parachutist Badge. On 23 November 1983, he was assigned to Fort Bragg, NC, with duties in his MOS. b. A DA Form 3349 (Physical Profile Board Proceedings) confirms on 11 September 1985, Walter Reed Medical Center, issued the applicant a permanent profile for mechanical back pain status post back surgery, and bilateral L5 spondylolysis. (1) He was assigned a physical profile of 1 1 P3 1 1 1. A physical profile, as reflected on a DA Form 3349 (Physical Profile), SF 88, 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. (2) His assignment limitation is listed as medically terminated from jump status. However, he was otherwise fully qualified for worldwide deployment in his MOS. These proceedings were approved on 11 September 1985. c. A second DA Form 3349 shows his profiled condition was changed to “Bilateral L5 spondylolysis” with the following physical profile 1 1 2 1 1 1. His assignment limitation is listed as, “No parachute jumping.” His profile remained permanent, and it was approved on 30 September 1985. 5. Headquarters, 24th Infantry Division (Mechanized), Fort Stewart issued Orders 68-29 assigning the applicant to the separation Transfer Point for separation Processing, on 4 May 1986. 6. Headquarters, 24th Infantry Division (Mechanized), Fort Stewart issued Orders 111-42 amending Orders 68-29 changing his reporting date to the Separation Transfer Point to 3 July 1986. 7. On 3 July 1986, he was released from active duty. His DD Form 214 shows he was separated under AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, due to expiration term of service with an honorable characterization of service. He completed 2 years, 11 months, and 29 days of net active service during this period. He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his Reserve obligation through 4 July 1989. 8. AR 40-501 (Standards of Medical Fitness) states Soldiers with conditions listed in Chapter 3, who do not meet the required medical standards will be evaluated by an MEB. Possession of one or more of the conditions listed in this chapter does not mean automatic retirement or separation from service. Physicians are responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB. 9. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), states 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. 10. AR 635-200 states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. Personnel who are physically unfit for retention (see AR 40–501, chapter 3) but who were accepted for, or continued in, military service per AR 635–40, will not be separated because of expiration term of service (ETS) unless processing for separation because of physical disability is waived. 11. 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. 12. 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. 13. 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. 14. MEDICAL REVIEW: a. 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: b. The applicant is applying to the ABCMR requesting, in essence, a referral to the Disability Evaluation System (DES) with a permanent retirement for physical disability. He states: “I was injured on active duty and transferred to Walter Reed Medical Hospital for 78 days. After release, I was separated from the US Army without any consideration of a Medical or Physical Examination Board. Due to the severity and chronic nature of my in-service injury, I have not been employed since separating from the military. I have been granted a Total and Permanent Disability by the Department of Veterans Affairs for the injuries incurred during my active-duty service.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows the former Infantryman (11B) entered the regular Army on 5 July 1983 and was honorably discharged on 3 July 1986 under the separation authority provided by chapter 4 of AR 635-200, Personnel Separations – Enlisted Personnel (15 April 1986): Separation for Expiration of Service Obligation. It shows that he had 2 years, 11 months, and 29 days of net active service for this period. d. His military separation code of JBK denotes “Completion of Required Active Service.” His reenlistment code of RE-1B denotes he was fully qualified to reenlist, was ineligible to reenlist for 93 days after date of separation, and was used for “Individuals who have not been tested to verify primary MOS during current term of service.” e. A Physical Profile Board Proceedings (DA form 3349) shows that on 11 September 1985, the applicant was placed on was placed on an L3 non-duty limiting permanent profile for “1. Mechanical back pain status post back surgery. 2. Bilateral L5 spondylolysis.” It states: “Servicemember is medically terminated from jump status . Servicemember is otherwise fully qualified for worldwide deployment in his MOS., f. There was no medical documentation submitted with the application and his Service predates AHLTA. g. On 30 September 1985, this profile was down downgraded to an L2 non-duty limiting permanent profile for “Bilateral L5 spondylolysis” with the only assignment limitation being “No parachute jumping.” This appears to have been a correction of the errant L3 on his initial profile as a “3” in any category denotes significant duty limitations which typically results in a referral to a medical evaluation board. h. Paragraph 2-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 August 1982) states: “The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his office, grade, rank, or rating.” i. There is insufficient probative evidence the applicant’s lumbar spine condition or any other medical condition 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 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, most of which appear related to his lumbar spine. The earliest disability rating was awarded on 17 April 2007 for intervertebral disc syndrome. k. The DES only compensates an individual 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. l. It is the opinion of the ARBA Medical Advisor that a referral of his case to the Disability Evaluation System is not warranted. BOARD DISCUSSION: 1. The Board determined 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. 2. 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 FSM’s military record, and regulatory guidance were carefully considered. The Board reviewed and agreed with the advisory official’s finding insufficient probative evidence the applicant’s lumbar spine condition or any other medical condition 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 medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. Based on a preponderance of evidence, the Board determined that the reason for separation the applicant received upon separation was not in error or unjust. 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.2. 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. 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. 3. 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 Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 4. Army Regulation 40-501, in effect at the time, provides information on medical fitness standards for enlistment, induction, appointment, retention, separation, including retirement and related policies and procedures. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) provides various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for all enlisted Soldiers of the active Army, Army National Guard, and USAR. a. Soldiers with conditions listed in Chapter 3, who do not meet the required medical standards will be evaluated by an MEB and will be referred to a physical evaluation board with the following caveat: Physicians who identify Soldiers with medical conditions listed in chapter 3 should initiate an MEB at the time of identification. Physicians should not defer initiating the MEB until the Soldier is being processed for non-disability retirement. b. Possession of one or more of the conditions listed in chapter 3 does not mean automatic retirement or separation from service. Physicians are responsible for referring Soldiers with conditions listed in Chapter 3 to an MEB. 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, USC, Chapter 61, Retirement or Separation for Physical Disability, and Department of Defense Directive 1332.18 (PDES). It set 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. Paragraph 3-2b(2) states when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), continued performance of assigned duty (until he or she is referred to the PDES for evaluation) creates a presumption that the member is fit for duty. The presumption of fitness may be overcome if the evidence establishes that: (1) The Soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions. (2) An acute, grave illness or injury or other significant deterioration of the Soldier's physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the Soldier unfit for further duty. b. Paragraph 3-4 states 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 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 4 states a Soldier will be separated upon expiration of enlistment or fulfillment of service obligation. Personnel who are physically unfit for retention (see AR 40–501, chapter 3) but who were accepted for, or continued in, military service per AR 635–40, will not be separated because of ETS unless processing for separation because of physical disability is waived. 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. 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) AR20220008658 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1