IN THE CASE OF: BOARD DATE: 28 July 20223 DOCKET NUMBER: AR20230000201 APPLICANT REQUESTS: * his discharge be changed from separated to retired due to undiagnosed Post- Traumatic Stress Disorder (PTSD) * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * Photo of the Applicant and a General Officer * Memorandums Letters of Appreciation * Permanent Orders Number 262-00016 Award of Army Good Conduct Medal (AGCM), 19 September 1995 * Permanent Orders Number 136-24 Award of Combat Action Badge (CAB), 16 May 2006 * DA Form 638 (Recommendation for Award), 26 January 2008 * DA Form 4980-12 (Meritorious Service Medal (MSM) Certificate), 25 May 2008 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 30 June 2008 * DA Form 87 (Certificate of Training), 21 March 2010 * DD Form 2412 (Defense Meritorious Service Medal (DMSM) Certificate), 22 October 2010 * Self-Authored Notes * DA Forms 67-9 (Officer Evaluation Report (OER)) * Memorandum, Subject: Statement of Wartime Service, 20 December 2010 * DD Form 214, 1 April 2011 * Certificate Transportation Captains Career Course, 27 April 2012 * Certificate Combined Logistics Captains Career Course, 27 April 2012 * Certificate Completion of Master Resilience Training, 14 June 2012 * Orders Number 057-558 Separation from the Army National Guard (ARNG), 26 February 2014 * National Guard Bureau (NGB) Form 23A (ARNG Current Annual Statement), 6 May 2014 * Letter from Department of Veterans Affairs (VA), 16 May 2017 * Orders Number D-06-714769 Discharge from the U.S Army Reserve (USAR), 6 June 2017 * Page 2 of 5 of VA Rating Decision * Pages 6 and 7 of 9 of VA Rating Decision * Letter from Office of the Chief of Legislative Liaison, 29 August 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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, in his application and self-authored letter, in effect: a. He requests that his status be changed from separated to retired. He was unable to complete 20 good years due to undiagnosed PTSD, although he did serve more than 16 good years and more than 20 years of overall service. b. He knows his letter and application to the Board is a shot in the dark, but he really had nothing to lose. He saw a story about a Veteran in his situation who had his separation changed to discharge. c. He served in the Army in some capacity for over 20 years be it in the Regular Army, the Alabama Army National Guard (ALARNG), the USAR, or the Individual Ready Reserve (IRR). Unfortunately, he only had 16 good years towards retirement before he had to separate from the USAR; of those 16 years, three of them were spent in Iraq, seven of them were spent in the Regular Army including two years in Germany. He did not have good years from 2013 through 2017. d. He was enlisted for 4 years from 1992 to 1996. After six months of training, he spent those two years in Germany, followed by another 18 months at Fort Sill, OK. He returned home and worked full time, while attending college. He spent 4 years in the IRR, during this time. He graduated college one month prior to 9/11, which prompted him to reenlist via Officer Candidate School (OCS). He earned his commission on 10 January 2003, from Fort Benning, GA. e. After OCS and his officer basic course, he was assigned to Fort Lewis, WA, where he had the incredible honor of being the platoon leader of the third largest platoon in the entire U.S. Army. He was in the 296th Brigade Support Battalion, 3rd Brigade, 2nd Infantry Division of the Army's First Stryker Brigade. They deployed for a year on 12 November 2002. He lost two Soldiers to an improvised explosive device on 4 April 2004. One died instantly, while the other succumbed to her wounds three days later. f. He left Active Duty (AD) on 10 January 2006, and later transitioned to the ALARNG. In March 2007, he was involuntarily cross leveled to the 1203rd Engineer Battalion in Dothan. They deployed to Iraq from June 2007 to June 2008. g. Upon return to his home unit, they were activated. He did not have to go since he was still on his dwell time, but as an officer and a leader, he felt obligated, so they deployed to Iraq from 2010 to 2011. h. In 2014, the USAR offered to promote him to major (MAJ), so he jumped at that opportunity. In 2015, he received his dream assignment. He was selected to be a part of the Individual Mobilization Augmentee (IMA), which is a reserve program that lets Soldiers perform all of his/her required duties, during one period versus the traditional two days a month and two weeks a year. He only needed to do it for four years to be eligible for retirement and to start receiving his retirement pay at age 58 [sic]. He was in a really good place, until he was not. i. In April 2015, while on his first IMA assignment, at Fort Eustis, Virginia, his wife left him. He can blame a great deal of their problems on the PTSD from his service. He has no doubt, he was undiagnosed at the time, but he knew something was not right. His world began to crumble and the PTSD that he had fought against for so long started to win the battle. That was the last time he wore the uniform. Four years shy of the end of a career that he was very proud of. He was diagnosed with PTSD on Christmas Eve at the Tuskegee VA. j. He was a shell of his former self. In subsequent months, due to debt, he lost his secret security clearance, which is a must have for a commissioned officer. All of this led to heavy drinking, which culminated in a driving under the influence offense on 27 March 2017. He hit rock bottom that night and wanted to take his own life, but the very next day, he found out he was going to be a father, with his ex-wife. He has not abused alcohol since that night. In fact, he seldom drinks at all. k. He read a story about another Veteran with a solid career who was unable to finish the race due to undiagnosed PTSD. He does not recall whether he received full retirement or a percentage, but he would love the honor of being able to call himself a retired Army Officer and receive the benefits that go along with it. It is so difficult not being retired. At the risk of sounding arrogant, he is not at all, he feels he gave enough to warrant retirement, and he would do it all again if he could. The PTSD won the battle, which caused him to forfeit his career. If he had that to do all over again, he would have submitted for a medical retirement, but his wife leaving him happened so fast and he just lost everything in an avalanche. l. When he got to Fort Benning, they processed his paperwork as if he was not in the IRR for those four years. They processed it as if he had been AD Regular Army for the entire six years of his break in service. He corrected them, however, if he had not, he would have 22 good years, but he believes in being a man of integrity, even though he did not live that way through his darkest times. m. Another example of his integrity pertains to a Bronze Star Medal (BSM) that was put on his DD Form 214 following his second deployment. He was put in for a BSM by his Battalion Commanders following his first and second tours, but they were downgraded by the Brigade Commander each time, who did not know him. Somehow, that DD Form 214 listed him as having a BSM, but he had it removed. It was the right thing to do. n. He is now a 100 percent service-connected disabled Veteran through the VA, but his dream is to be retired. Part of his disability is asthma, which he was granted years before the PACT Act. He just thought he was out of shape, while running, but it was due to sleeping next to a burn pit for two of his three deployments. o. He is now 50 years old with a 4-year-old daughter and too broken in too many ways to attempt to go back into the service. He humbly requests to have his status changed to retired MAJ instead of just a separated Soldier. Joining the Army was the greatest thing he ever did. Not being able to finish what he started is a stain on a satisfactory career, and it haunts him daily mentally, physically, emotionally, and financially. p. He provided a handful of documents, for the Board's consideration, showing what he believes to be a solid career from a private to a field grade officer. They are just examples for the Board to get a glimpse of his military service. 3. The applicant's service record contains the following documents for the Board's consideration: a. DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 3 January 1992, shows the applicant enlisted in the USAR Delayed Entry Program (DEP) for a period of 8 years. On 18 August 1992, the applicant was discharged from the USAR DEP and entered AD for a period of 4 years. b. Orders Number 110-0064, published by the U.S. Army Field Artillery School and Fort Sill, dated 19 April 1996, released the applicant from AD, effective 25 June 1996. c. DD Form 214, for the period ending 25 June 1996, transferred the applicant into the USAR Control Group (Reinforcement). He completed 3 years, 10 months, and 8 days of active duty service. d. DD Form 4, dated 12 September 2002, shows the applicant enlisted in the Army for a period of 3 years. e. DD Form 214, for the period ending 9 January 2003, transferred the applicant to the USAR Control Group (IRR). He completed 3 months and 28 days of active duty service with 3 years, 10 months, and 8 days of prior active duty service and 3 years, 6 months, and 7 days of prior inactive duty service. f. DA Form 71 (Oath of Office - Military Personnel), dated 10 January 2003, shows the applicant completed the oath of office and was appointed as a Reserve commissioned officer. g. Orders Number 243-0015, published by Headquarters, I Corps and Fort Lewis, dated 31 August 2005, released the applicant from AD, effective 10 January 2006. h. DD Form 214, for the period ending 10 January 2006, transferred the applicant into USAR Control Group (IRR). A DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) amended the DD Form 214 to show: * entered AD on 14 June 2003 * net AD service; 2 years, 6 months, and 27 days * total prior AD service; 4 years, 2 months, and 6 days * total prior inactive duty service; 4 years, 6 months, and 26 days i. DA Form 71, dated 18 May 2006, shows he completed the oath of office and was appointed as a Reserve commissioned officer. On the same day, he completed an NGB Form 337 (Oaths of Office) showing he completed the oath of office in the ALARNG. j. Orders Number C-06-614885, published by the U.S. Army Human Resources Command (AHRC), dated 1 June 2006, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the ALARNG because of appointment as a Reserve commissioned officer, effective 18 May 2006. k. On 7 June 2007, the applicant entered active duty in support of Operation Iraqi Freedom. l. Orders Number 158-070, published by Headquarters, U.S. Army Garrison, Fort McCoy, dated 6 June 2008 released the applicant to the ALARNG from AD not by reason of physical disability, effective 30 June 2008. m. DD Form 214 shows the applicant was honorably released to the ALARNG on 30 June 2008. He had service in Iraq from 26 August 2007 through 2 June 2008. He completed 1 year and 24 days of net AD service with 6 years, 7 months, and 15 days of total prior active duty service and 8 years, 2 months, and 4 days of total inactive duty service. n. On 24 January 2010, the applicant entered active duty in support of Operation Iraqi Freedom. o. Orders Number 026-0011, published by the Camp Shelby Joint Forces Training Center, dated 26 January 2011, released the applicant from AD, not by reason of physical disability, effective 1 April 2011. p. DD Form 214, shows the applicant was honorably released to ALARNG on 1 April 2011. He had service in Iraq from 27 February 2010 through 21 January 2011. He completed 1 year, 2 months and 8 days of net AD service with 7 years, 8 months, and 10 days of total prior active duty service and 7 years and 17 days of total inactive duty service. q. DD Form 220 (Active Duty Report), dated 18 January 2012, shows he entered AD on 7 January 2012 and was released on 20 January 2012. He had completed 14 days of AD service. r. NGB Form 22 (Report of Separation and Record of Service), transferred the applicant to the USAR Control Group (IRR). He had entered the ARNG on 18 May 2006 and was transferred on 31 January 2014. He completed 7 years, 8 months, and 13 days of net service with 3 years, 10 months 14 days of prior Reserve component service and 7 years, 2 months, and 7 days of prior active federal service. He had 18 years, 9 months, and 4 years of total service for pay and 16 years of total service for retired pay. s. Orders Number C-06-408392, published by AHRC, dated 12 June 2014, transferred the applicant from the USAR Control Group (Reinforcement) to a USAR unit, effective 28 May 2014. t. Orders Number C-01-600977, published by AHRC, dated 21 January 2016, transferred the applicant from his USAR unit, in the rank of MAJ, to the USAR Control Group (Reinforcement), effective 21 January 2016. u. Orders Number C-05-607206, published by AHRC, dated 31 May 2016, reassigned the applicant to the Standby Reserve (Inactive List), in the rank of MAJ, because he failed to make a Military Service Obligation (MSO) election, effective 31 May 2016. v. Orders Number D-06-714769, published by AHRC, dated 6 June 2017, honorably discharged the applicant from the USAR, effective 6 June 2017, due to the applicant failing to provide an MSO election as required by Department of Defense Directive 1235.13 (Management of the IRR and the Inactive National Guard (ING)). w. The applicant's service record is void of a memorandum for retired pay at 15 years of service. Likewise, it is also void of medical board documents. x. DA Form 5016 (Chronological Statement of Retirement Points), dated 21 July 2023, shows the applicant completed 14 years of qualifying service for retirement. 4. The applicant provides the following documents, not previously considered, for the Board's consideration: a. A photo of the applicant and General D- at Command Sergeant Major (CSM) B- A-'s Medal of Honor ceremony at the White House in September 2014. The applicant states, CSM B- A- was from the applicant's hometown. He only included the photo to show that he wore the uniform proudly and was still going strong. A few months later, everything came crashing down. b. Memorandums, Subject: Letter of Appreciation, dated 28 June 1994 and 14 October 1994 commending the applicant for his professional and compassionate care while executing his job. The applicant included a note stating even as a young, enlisted Soldier he was trying to do the right thing. c. Permanent Orders Number 262-00016, published by Headquarters, United States Army Field Artillery Center and Fort Sill, dated 19 September 1995, awarded the applicant the AGCM for exemplary behavior, efficiency, and fidelity in active federal military service from 18 August 1992 to 17 August 1995. d. Permanent Orders Number 136-24, published by Headquarters, I Corps and Fort Lewis, dated 16 May 2006 awarded the applicant the CAB for being engaged by the enemy with multiple mortar attacks at Forward Operating Base Marez in Mosul, Iraq on 18 October 2004. e. DA Form 638 dated 26 January 2008, wherein the applicant was recommended for the BSM, and it was downgraded to an MSM on 5 April 2008 by the approval authority. The MSM was subsequently approved by Permanent Orders Number 091- 022 on 31 March 2008. The applicant provided a personal note stating this is where the battalion commander recommended him for a BSM. The applicant also provided DA Form 4980-12 showing he was awarded the MSM. f. DD Form 214, for the period ending 30 June 2008, which shows he was awarded the BSM and a note from the applicant stating he had the BSM removed. g. A DA Form 87 showing he completed the Counterinsurgency and Stability Operations Center Iraqi Partnership and Cultural Course from 12 March 2010 through 21 March 2010. h. DD Form 2412 showing the applicant was awarded the DMSM on 22 October 2010. i. Self-authored notes, which state he included a few OERs to show what he did and how well he performed by his leadership. He noted Lieutenant Colonel T-, his senior rater, did not give above center mass to second lieutenants (2LT). He included the following DA Forms 67-9: (1) From 15 May 2003 through 1 March 2004, as a 2LT, states outstanding performance, must promote. His senior rater rated him best qualified, stating promote to first lieutenant (1LT) immediately. He was rated as center of mass. (2) From 2 March 2004 through 31 December 2004, as a 1LT, states outstanding performance, must promote. His senior rated him best qualified stating promote to captain (CPT). (3) From 1 January 2005 through 17 June 2005, as a 1LT, states outstanding performance, must promote. His senior rated him best qualified stating promote to CPT now. (4) From 18 June 2005 through 10 January 2006, as a 1LT, states outstanding performance, must promote. His senior rater rated him best qualified stating in the top one-third of officers and promote to CPT immediately. (5) From 18 May 2006 through 1 April 2007, as a 1LT, states outstanding performance, must promote. His senior rated him best qualified stating he should be given full company command as soon as possible. (6) From 2 April 2007 through 1 April 2008, as a CPT, states outstanding performance, must promote. His senior rater rated him best qualified stating he highly recommended the applicant for future promotion ahead of peers when he became eligible. (7) From 29 October 2008 through 28 October 2009, as a CPT, states outstanding performance, must promote. His senior rated him as best qualified stating he highly recommended the applicant for promotion ahead of peers upon completion of the Captains Career Course. (8) 28 October 2009 through 27 October 2010, as a CPT, states outstanding performance, must promote. His senior rater him as best qualified stating he should be promoted at the earliest opportunity ahead of peers. j. Memorandum, Subject: Statement of Wartime Service, dated 20 December 2010 shows the applicant was in Iraq from 27 February 2010 through 16 January 2011 and the awards he was authorized to wear for his service, during that time period. The entire memorandum is available for the Board's consideration. k. Certificates, showing the applicant completed the Transportation Captains Career Course and the Combined Logistics Captains Career Course on 27 April 2012. l. A certificate showing the applicant completed the Mater Resilience Training 10- Day Course from 4 June 2012 through 14 June 2012. m. Orders Number 057-558, published by the Joint Force Headquarters ALARNG, dated 26 February 2014, honorably discharged the applicant from the ARNG and transferred him to USAR Control Group (IRR), effective 31 January 2014. n. NGB Form 23A, dated 6 May 2014, shows the applicant had a total of 16 creditable service for retired pay. o. A letter from the VA, dated 16 May 2017, which states the applicant was receiving his medical care at the Central Alabama Veterans Health Care System and had military-related PTSD, Traumatic Brain Injury (TBI), Migraine Headache, and Chronic Cervical Spine Pain with multiple physical injuries and related physical limitations for which he had several follow-up appointments. p. Page 2 of 5 of a VA Rating Decision, which shows the applicant had been assigned a 70 percent evaluation for his PTSD with TBI. q. Pages 6 and 7 of 9 of a VA Rating Decision, which shows he received service connection for asthma, which the applicant states happened long before the PACT Act. He received service connection for migraine headaches; however, service connection for chronic cervical pain was denied, which the applicant states was caused by his service. r. A letter from the Office of the Chief of Legislative Liaison to the applicant's United States Representative, dated 29 August 2022, states the applicant had the right to request of review of his case by the Board. The entire letter is available for the Board's consideration. 5. 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 (EMR) (AHLTA and or MHS Genesis), 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) and a subsequent medical retirement. He states: I request that my status be changed from separated to retired. I was unable to get to 20 good years due to undiagnosed PTSD, although I did serve more than 16 years good and more than 20 overall. c. The Record of Proceedings details the applicant s military service and the circumstances of the case. Orders published by the United States Army Human Resources Command (USA HRC) show the former Officer was discharged from the USAR effective 6 June 2017 under the authority provided by Department of Defense Instruction Number 1235.13, SUBJECT: Administration and Management of the Individual Ready Reserve (IRR) and the Inactive National Guard (ING), 18 October 2013, for failure to provide a remaining military service obligation (MSO) election as required by DODI 1235.13. d. From the applicant s self-authored statement: In April on 2015, while on my first IMA [individual mobilization augmentee] assignment, at Ft. Eustis, Virginia, my wife left me. I can blame a great deal of our problems on the PTSD from my service. I have no doubt. I was undiagnosed at the time, but I knew something wasn't right. My world began to crumble and the PTSD that I'd fought against for so long started to win the battle. That was the last time I wore the uniform ... four years shy of the end of a career that I was very proud of. I was diagnosed on Christmas Eve of 2015 at the Tuskegee, VA. I was a shell of my former self. In subsequent months, due to debt, I lost my secret clearance, which is a must-have for a commissioned officer. All of this led to heavy drinking, which culminated in a DUI on March 27, 2017. I hit rock bottom that night and wanted to take my own life, but the very next day, I found out that I was going to be a father - with my ex-wife, long story - I have not abused alcohol since that night. In fact, I seldom drink at all. e. A VA staff psychiatrist wrote in his 16 May 2017 To Whom it May Concern memorandum: This letter is to inform you that Mr. [Applicant, SSNo. XXX-XX-XXXX, is currently receiving his medical Care at the Central Alabama Veterans Health Care System and has military-related PTSD, Traumatic Brain Injury, Migraine Headache and Chronic Cervical Spine Pain with multiple physical injuries and related physical limitations for which he has several follow-up appointments in our clinics. Mr. [Applicant] is considered competent and employable for VA purposes at the present time. f. Paragraph 1f in enclosure 3 of DODI 1235.13: Officers who have fulfilled their MSO and have not taken action to elect to remain in the IRR must be advised of the requirement to remove them from the military. The Military Departments must remove those officers from the military within 2 years after fulfillment of the officer s MSO unless they positively elect to remain in the IRR past their MSO as allowed by the military departments. g. Orders published by Joint Force Headquarters of the Alabama National Guard show he had been honorably discharged and transferred to the IRR effective 31 January 2014. h. There is no evidence the former Officer had any medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 prior to his voluntary discharge; or that prevented the applicant from maintaining contact with his unit and making the election(s) as required by DODI1235.13. Thus, there is no cause for referral to the Disability Evaluation System. i. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings, including one for PTSD. However, 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. j. It is the opinion of the ARBA medical advisor that a referral of his case to the DES is not warranted. BOARD DISCUSSION: 1. 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. 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 Board carefully considered the applicant s contentions, the military record, and regulatory guidance. Evidence of record shows that the applicant was discharged for failure to provide a remaining military obligation election as required by DoD instruction. However, the Board found insufficient evidence of a medical condition that would have failed medical retention standards in accordance with applicable regulatory guidance. Further, the Board noted the applicant s reference to the Department of Veterans Affairs having awarded him various service-connected disabilities. The VA and DoD serve different purposes and operate under different rules, laws, and regulations when assigning disability percentages. As such, variance between VA disability ratings and those of the Army do not reflect an error or injustice. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :xx :xx :xx DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined 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, USC, 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. Department of Defense Instruction 1235.13 (Administration and Management of the Individual Ready Reserve (IRR) and the Inactive National Guard (ING)) states service members with or without an MSO may remain assigned in the ING up to the maximum age requirement, provided they remain a deployable asset. Service members must execute an extension agreement at the end of their MSO, or contractual agreement, to remain in the ING. Officers who have fulfilled their MSO and have not taken action to elect to remain in the IRR must be advised of the requirement to remove them from the military. The Military Departments must remove those officers from the military within 2 years after fulfillment of the officer s MSO unless they positively elect to remain in the IRR past their MSO as allowed by the military departments. 3. 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 Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 4. Army Regulation (AR) 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with AR 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty 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 or 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 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 are either 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 onetime 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 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 5. Title 10, USC, 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, USC, 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. 6. AR 40-501 (Standards of Medical Fitness), provides policies and procedures on medical fitness standards for induction, enlistment, appointment, and retention. Paragraph 3-33 (anxiety, somatoform, or dissociative disorders) states the causes for referral to an MEB are as follows: * persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or * persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or * persistence or recurrence of symptoms resulting in interference with effective military performance 7. Title 38, USC, sections 1110 and 1131, permits the VA to award compensation for disabilities that were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. 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. 8. AR 135-180 (Retirement for Non-Regular Service) provides within paragraph 2-5 (Notification of Eligibility for Retired Pay 15 Year Letter) that USAR Soldiers in an active status who are covered by paragraph 2 2b (Basic Qualifying Service Requirements) and have at least 15 years of qualifying service, and less than 20, computed under Title 10, USC, section 12732, if the individual is to be separated because the Soldier has been determined unfit for continued Selected Reserve service. a. For Soldiers who completed the years of qualifying service on or after 5 October 1994, but before 25 April 2005, the last 6 years of qualifying service must have been in a component other than a regular component. b. For Soldiers who completed the years of qualifying service on or after 25 April 2005, there is no minimum USAR service requirement. c. As a contingent to the above, the Soldier must not be entitled to retired pay from the Armed Forces under any other provision of law. An exception for this contingent under the provisions of Title 10 USC 12741, a person may elect to receive retired pay for non-regular service under 10 USC Chapter 1223 instead of regular retired pay under 10 USC Chapters 65, 367, if they served in an active status in the Selected Reserve of the Ready Reserve for a minimum of 2 years (excluding any period of active service) after becoming eligible for regular retired pay. 9. AR 600-8-7 (Retirement Services Program) paragraph 7-19 (Notification of Eligibility for Retired Pay at Non-Regular Retirement) provides that the Human Resources Command (HRC) will issue the 15 year Notification of Eligibility (NOE) letter to Soldiers medically disqualified from future service for physical or other medical reasons (10 USC 12731(a)). These Soldiers will have served at least 15 but less than 20 years of qualifying service and meet all other eligibility criteria for a non-regular retirement. 10. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000201 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1