IN THE CASE OF: 

		BOARD DATE: 18 August 2023

		DOCKET NUMBER: AR20230001074


APPLICANT REQUESTS:  physical disability retirement. 

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

*	DD Form 149 (Application for Correction of Military Record)
*	Department of Veterans Affairs (VA) Rating Decision
*	VA Health Summary (pages 1 and 5 of 118)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty) for the 
period 5 January – 17 October 2010
*	National Guard Bureau (NGB) Form 22 (Report of Separation and Record of 
Service)
*	VA Summary of Benefits
*	active duty orders
*	release from active duty orders

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 should have been placed on the Permanent Disability 
Retired List (PDRL) based on his combat-incurred disabilities. He is now rated 100% 
disabled and unemployable by the VA for post-traumatic stress disorder (PTSD). He 
was awarded 30% service connection for PTSD based on his service in Iraq. He was 
not aware that he could apply for placement on the PDRL at the time of his retirement 
from the Army National Guard (ARNG). 

3.  The applicant enlisted in the Virginia ARNG (VAARNG) on 31 January 1990. His 
record shows service in Afghanistan and Iraq.

4.  The applicant's Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) is 
dated 2 February 2010. This letter notified him that having completed the required years 
of service, he is eligible for retired pay upon application at age 60. 

5.  On 2 February 2011, the applicant submitted a voluntary request for retirement from 
the ARNG with a retirement date of 30 March 2011. He stated his decision to retire was 
based on pursuing advancement in his civilian employment and spending more time 
with his family.

6.  Orders issued on 15 February 2011 directed the applicant's discharge from the 
ARNG and his reassignment to the Retired Reserve effective 30 March 2011.

7.  The applicant's NGB Form 22 confirms he was discharged from the VAARNG and 
transferred to the Retired Reserve effective 30 March 2011.

8.  The applicant provided a VA Rating Decision and Summary of Benefits showing he 
was granted service-connected disability compensation for a number of conditions that 
include PTSD.

9.  In connection with the processing of this case, an advisory opinion was obtained 
from the VAARNG Director of Personnel. It states:

	a.  Upon review of the applicant's record, there was no indication that he was 
overlooked to be evaluated for a medical board. In a Post Deployment Health 
Reassessment (PDHA) on 1 August 2008, he stated that he was being treated for 
PTSD through the VA and his symptoms were controlled. During a Periodic Health 
Assessment (PHA) on 2 May 2009, he indicated he was diagnosed with PTSD, received 
treatment, and was doing well. He was not in case management for PTSD or any other 
conditions. 

	b.  Their investigation determined that the applicant did not disclose any information 
regarding his PTSD that would have triggered a permanent 3 profile followed by a 
medical board, thus preventing the VAARNG from being able to place him on the PDRL. 
He is not eligible to be placed on the PDRL due to a lack of documentation during 
medical assessments conducted during his military service.

10.  An advisory opinion was also obtained from the NGB, Special Actions Branch, it 
states:

	a.  The applicant was never evaluated for a medical retirement but was rated 30% 
disability for PTSD related to his deployment from 2009 to 2010. The applicant claims 
that he was not aware that he could apply to be on the PDRL at the time of his 
retirement. The applicant is requesting to be placed on the PDRL now that he is rated at 
80% disability by the VA, 70% for PTSD, and he is receiving payment at 100% rate 
because he is unemployable due to his service-connected disabilities.

	b.  The applicant’s records do not have any evidence of a permanent profile 3 or 4 
that would have led the medical providers to refer him to the medical evaluation and 
retirement process. In a PDHA on 1 August 2008, he stated that he was being treated 
for PTSD through the VA and his symptoms were controlled. During a PHA on 2 May 
2009, he was diagnosed with PTSD, received treatment, and was doing well. He was 
not in case management for PTSD or any other conditions. The VAARNG conducted a 
review of this case and concluded that he did not disclose any information regarding his 
PTSD that would have triggered a permanent 3 profile followed by a medical board, 
thus preventing the VAARNG from being able to place him on the PDRL.

	c.  Based on the applicant’s claims and the documents he provided, it is reasonable 
to conclude that there was nothing in his personal or medical files that would have 
caused a medical provider to refer the applicant to a medical board. The Integrated 
Disability Evaluation system (IDES) process is initiated by a permanent profile 3 or 4 in 
a PULHES category and a referral by a medical provider. During his time of service, he 
did not disclose any information or indicate to medical providers that he needed a 
permanent profile for his PTSD, only that he was being treated and otherwise 
recovering.

	d.  For these reasons, it is the recommendation of their office that the applicant’s 
request be disapproved. It is the opinion of their office that while the applicant may not 
have known about the medical evaluation process and the PDRL, he also did not have 
any medical history that would have caused him to be referred to a medical board. 
Since servicemembers cannot self-refer to the IDES process, he would have needed a 
medical provider’s referral from his medical history, but there is no documentation from 
his service records. He is currently receiving 100% rate because he is unemployable 
due to his service-related disabilities, but this VA rating does not translate to a 
retroactive PRDL placement.

11.  The advisory opinions were provided to the applicant and given the opportunity to 
provide additional evidence of argument. He responded and stated:

I disagree with the National Guard Bureau decision, on my PTSD claim concerning 
the PDRL. The reason I didn't come forward to address the PTSD claim was 
because the Army would have discharged me from service. By me being a platoon 
sergeant, I didn't want my subordinates to see a weakness in my leadership. I was 
awarded the Combat Infantryman's Badge during my time in Afghanistan in 2004. 
My PTSD has become chronic now due to my combat experiences and I will have 
to be on very high doses of psychiatric medications for the rest of my life. I have a 
hard time sleeping at night because of the nightmares, this has been going on for 
several years now. I feel that I should be placed on the military disability retired list 
for my combat disabilities concerning PTSD.

12.  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.

13.  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.

14.  Title 38, Code of Federal Regulations, Part IV is the VA Schedule for Rating 
Disabilities (VASRD). 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.  

15.  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 in essence requesting a referral to the 
Disability Evaluation System (DES).  He states:
“I should have been placed on the permanent disability retired list for my combat 
service disabilities.  I am now rated at 100% permanent and total from the VA for 
PTSD.  I am also rated 100% VA unemployability.
 I was awarded 30% PTSD service connection for my time in Iraq 2/27/2009 to 
01/05/2010.  I wasn’t aware that I could apply for PDRL at the time of my 
retirement from the Army National Guard.” 
    c.  The Record of Proceedings details the applicant’s service and the circumstances 
of the case.  One DD 214 shows former Guard Soldier entered active duty in support of 
Operation Iraqi Freedom on 23 June 2007 and was released from active duty at the 
completion of his required active service on 26 February 2009.  He served in 
Kuwait/Iraq from 28 August 2007 thru 25 November 2008.  A second  DD 214 shows he 
entered active duty in support of Operation Iraqi Freedom on 5 January 2010 and was 
released from active duty at the completion of his required active service on 17 October 
2010.  He served in Kuwait/Iraq from 18 March 2010 thru 18 August 2010.
 
    d.  His National Guard Report of Separation and Record of Service (NGB Form 22) 
shows he entered the Army National Guard on 31 January 1990 was honorably 
separated from the Virginia Army National Guard the on 30 March 2011 under 
paragraph 6-36o of NGR 600-200, Enlisted Personnel Management (31 July 2009): 
Discharge and transfer to the Retired Reserve.  It shows the applicant had 21 years, 0 
months, and 0 days of total service for retired pay.

    e.  He received his Notification for Eligibility for Retired Pay at Age 60 (aka Twenty-
Year Letter) on 2 February 2010.  On 2 February 2011, he voluntarily requested 
retirement from the ARNG:
“I, SFC [Applicant], am requesting retirement from ·the Virginia Army National 
Guard.   My decision to retire is based on perusing advancement in my civilian 
employment and spending more time with my daughter.  I request my retirement 
date to be effective on 30 March 2011.  Thank you.”
    f.  A 31 December 2009 VA psychiatrist staff note shows the applicant was diagnosed 
with and being treated for “mild PTSD” and had been improving with treatment.
“Today, he reports no symptoms and/or conditions determined reasonably and/or 
likely attributable to side-effects of psychiatric meds.  Pt [patient] had reported 
improved sleep and nightmares/flashbacks decreasing from 3-4Xw to 1-2Xw and 
now to 1/w over a gradual course on last visit; he thinks intensity of dreams are 
now less, but frequency has not further decreased.  
He had never taken psychiatric meds before and was reluctant to do so; he 
continues to be pleased with results but does not want to increase the 
quietapine.  Other symptoms of PTSD, i.e., stress, irritability, and low mood and 
anxiety have improved only gradually, but do persist.  
He has broken up with fiancée' in TX over financial issues and has no girlfriend at 
this time and is a bit leery of acquiring one.  He maintains active participation in 
US Army Reserve and has had two deployments to Middle East.  He has recently 
been extended, despite his 20y retirement being reached and he is scheduled to 
return to the Middle East.   He has recently closed on a house and has become 
more religious.  He has recently been promoted to E7 and had expected to retire 
in Dec 2009 and go to college full-time in Computer Science.”
    g.  An 8 August 2018 VA Rating Decision Code Sheet shows the applicant had a 
30% disability rating for PTSD effective 18 October 2010 which was increased to 50% 
effective 10 April 2012.
    h.  The presence of a condition does not per se warrant a permanent retirement for 
physical disability.  Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, 
Retirement, or Separation (8 February 2006) 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 Soldier reasonably may be expected to perform because of their office, 
grade, rank, or rating.”
    i.  His final NCO Evaluation Report covered 1 October 2009 thru 15 August 2010.  
His rater marked him as fully capable.  His senior rater middle blocked him with “3”s on 
a scale of 1 to 5 opining:
*	“passionate platoon sergeant, that demonstrates genuine concern for 
subordinates
*	NCO is a diamond in the rough; challenge with difficult assignments within 
current grade
*	promote with peers

    j.  MEDCHART contains no temporary or permanent profiles on the applicant.
There is no probative evidence the applicant had any duty incurred medical condition 
which would have failed the medical retention standards of chapter 3 of AR 40-501, 
Standards of Medical Fitness, prior to his discharge.  Thus, there was no cause for 
referral to the Disability Evaluation System.  Furthermore, there is no evidence that any 
medical condition prevented the applicant from being able to reasonably perform the 
duties of his office, grade, rank, or rating prior to his discharge. 
Review of his records in JLV shows he has been awarded multiple VA service-
connected disability ratings in addition to the 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.
    k.  It is the opinion of the ARBA Medical Advisor that a referral of his case to the DES 
is not warranted. 

BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that relief was/was not warranted. The 
applicant’s contentions, the military record, and regulatory guidance were carefully 
considered.
 
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 contentions, the military record, and regulatory 
guidance. The Board found insufficient evidence that the applicant’s lumbar spine 
condition was related to the motor vehicle accident in which he was involved or incurred 
during his period of active duty. As such, he is not eligible for referral into the DES for a 
duty related condition. Based on the preponderance of evidence available for review, 
the Board determined the evidence presented insufficient to warrant a recommendation 
for relief and referral of his case Disability Evaluation System is not warranted

2. In reviewing the request, the Board noted that the applicant references the variance 
in ratings from Veterans Affairs and that of the Department of Defense. Veterans Affairs 
and DoD operate under separate laws, policies and guidance. VA primarily assesses 
the degree of disabling conditions to determine compensation and employment potential 
and the Army for fitness for duty; therefore, there is not necessarily a correlation 
between VA disability ratings and those of the Army.
   
 
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, 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 40-501 (Standards of Medical Fitness) provides that for an 
individual to be found unfit by reason of physical disability, he or she must be unable to 
perform the duties of his or her office, grade, rank or rating. Performance of duty despite 
impairment would be considered presumptive evidence of physical fitness.

3.  Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or 
Separation), dated 19 January 2017, prescribes the Army Disability Evaluation System 
(DES) 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. It implements the requirements of Title 10, U.S. 
Code, chapter 61; Department of Defense Instructions (DoDI) 1332.18 (Disability 
Evaluation System); DoD Manual 1332.18 (DES Volumes 1 through 3) and Army 
Directive 2012-22 (Changes to Integrated Disability Evaluation System Procedures) as 
modified by DoDI 1332.18.

	a. The objectives are to maintain an effective and fit military organization with 
maximum use of available manpower; provide benefits to eligible Soldiers whose 
military service is terminated because of a service-connected disability; provide prompt 
disability evaluation processing ensuring the rights and interests of the Government and 
Soldier are protected; and, establish the Military Occupational Specialty Administrative 
Retention Review (MAR2) as an Army pre-DES evaluation process for Soldiers who 
require a P3 or P4 (permanent profile) for a medical condition that meets the medical 
retention standards of Army Regulation 40-501.

	b. Public Law 110-181 defines the term, physical DES, as a system or process of the 
DoD for evaluating the nature and extent of disabilities affecting members of the Armed 
Forces that is operated by the Secretaries of the military departments and is composed 
of medical evaluation boards, physical evaluation boards, counseling of Soldiers, and 
mechanisms for the final disposition of disability evaluations by
appropriate personnel.

	c. The DES begins for a Soldier when either of the events below occurs: 

		(1) The Soldier is issued a permanent profile approved in accordance with the 
provisions of Army Regulation 40–501 and the profile contains a numerical designator 
of P3/P4 in any of the serial profile factors for a condition that appears not to meet 
medical retention standards in accordance with AR 40–501. Within (but not later than) 
1 year of diagnosis, the Soldier must be assigned a P3/P4 profile to refer the Soldier to 
the DES.

		(2) The Soldier is referred to the DES as the outcome of MAR2 evaluation.

	d. A Medical Evaluation Board is convened to determine whether a Soldier’s medical 
condition(s) meets medical retention standards per Army Regulation 40-501. This board 
may determine a Soldier’s condition(s) meet medical retention standards and 
recommend the Soldier be returned to duty. This board must not provide conclusions or 
recommendations regarding fitness determinations.

	e. The Physical Evaluation Board (PEB) determines fitness for purposes of Soldiers’ 
retention, separation or retirement for disability under Title 10, U.S. Code, chapter 61, or 
separation for disability without entitlement to disability benefits under other than Title 
10, U.S. Code, chapter 61. The PEB also makes certain administrative determinations 
that may benefit implications under other provisions of law.

	f. Unless reserved for higher authority, the U.S. Army Physical Disability Agency 
approves disability cases for the Secretary of the Army and issues disposition 
instructions for Soldiers separated or retired for physical disability.

	g. Unit commanders will ensure medical profiles containing a P3/P4 or temporary 
(T) 3/T4 in one of the serial profile factors are reviewed according to the standards of 
Army Regulation 40-501. Among the duties required, a unit commander will provide a 
non-medical assessment by completing DA Form 7652 (DES Commander’s
Performance and Functional Statement).

	h. Soldiers will not be referred for MAR2 if the Soldier’s request for regular 
retirement, non-regular retirement, or transfer to the Retired Reserve has been 
approved.

4.  The Office of the Undersecretary of Defense for Personnel and Readiness issued 
clarifying guidance for the Secretary of Defense Directive to Service Discharge Review 
Boards and Service Boards for Correction of Military Records 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 to those 
conditions or experiences. The guidance further describes evidence sources and criteria 
and requires Boards to consider the conditions or experiences presented in evidence as 
potential mitigation for misconduct that led to the discharge.

5.  Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure 
that an applicant seeking corrective action by 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 ABCMR 
applicants (and/or their counsel) prior to adjudication.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230001074


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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