IN THE CASE OF: BOARD DATE: 15 August 2023 DOCKET NUMBER: AR20230001274 APPLICANT REQUESTS: reconsideration of his previous request for a physical disability retirement. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 7 February 2003 to 10 June 2004 • NGB Form 22 (Report of Separation and Record of Service) • Department of Veterans Affairs (VA) medical records • VA service-connected compensation verification letter • Memorandum, subject: Medical Determination/Physical Profile, 20 August 2009 • Army National Guard (ARNG) discharge orders • third-party statement FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120011361 on 23 May 2013. 2. The applicant defers to counsel. 3. In a 6-page brief, counsel states: a. During the applicant's service, he sustained many physical and psychological injuries. He was diagnosed with post-traumatic stress disorder (PTSD) following his deployment. This diagnosis led to many issues and countless hours of therapy. On 6 December 2006, it was recommended that he not be assigned to combat again. He also suffered injuries to his knees requiring surgery, injuries to his ears requiring him to now wear hearing aids, injury to his lungs, and an injury to his back. b. On 20 August 2009, the California Army National Guard (CAARNG) State Surgeon completed a medical determination in regards to the applicant and recommended his separation from the military based on his medical conditions. This was only 3 months before the end of his statutory/contractual service obligation. The applicant was deemed to be 60% disabled due to PTSD. He was never sent to the Medical Evaluation Board (MEB). On 30 August 2009, he was discharged from the ARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserves) with a "Medical Discharge." He served for 22 years and 18 days. He was credited with a total of 28 years of service for the basis of his retirement pay based on his 22 years of military service and 4 years of prior active federal service. c. In 2012, the applicant submitted an application for correction of military records. Because he was never sent to the MEB, he was simply medically discharged instead of being evaluated for a medical retirement. This has caused him to be unable to apply for Combat Related Special Compensation (CRSC) or his military pension because he is unable to provide them with the needed MEB-Physical Evaluation Board (PEB) information. His request was denied. d. In the applicant's case, it is respectfully submitted that a material error occurred in the discharge process. He should have received a medical/disability retirement instead of a medical discharge." However, he was not given the chance to receive a medical retirement because of the material error of not sending him to be evaluated by the MEB. Being examined by the MEB is the most crucial step in allowing a service member to receive a medical retirement and it was a material error in the case at hand to not recommend an examination of the applicant be completed given his known injuries, disabilities, and age. e. In order to receive a medical/disability retirement, a person must be evaluated by the MEB and the MEB must determine that the person is unfit for further military service due to a disability rating of at least 30%. With only a medical discharge, a person is not eligible to receive all the retirement benefits that he would if he was deemed medically retired. f. The applicant, who had a disability rating of over 60%, should have been recommended to the MEB. Instead, he was referred to the CAARNG State Surgeon. The evaluation and subsequent recommendation by the State Surgeon could only result in a medical discharge but not a medical retirement, as the State Surgeon is not the equivalent of the MEB and is therefore incapable of recommending someone to receive a medical retirement. By failing to refer the applicant to the MEB, a severe material error of procedure occurred that has led to him being unable to receive the retirement benefits he deserves. It was recommended that the applicant be examined for disability, and this recommendation should have automatically resulted in a review by the MEB. g. The applicant has suffered from many injuries sustained during his over 20 years of service in the United States Army. He continued to serve his country for many years after being diagnosed with PTSD. He is receiving continued treatment for his injuries even after discharge. He was admitted to the Men's Trauma Recovery Program in October of 2013. He has had endless scans and exams and has also attended numerous physical therapy session to combat his chronic pain. h. Due to the error, the applicant has been unable to apply for CRSC. He has also been unable to complete an accurate SGLI claim. The applicant only wants to receive the benefits he would have been entitled had the proper procedure been followed when his injuries and ability to remain in the military was examined. The applicant has suffered immensely from his disabilities that resulted from his service and it has been a material injustice to him that he has been unable to receive the benefits he deserves because he was not given a medical retirement. If the material error had not occurred, and he had been examined by the MEB, these injustices to his life after discharge would have been avoidable. i. Following his discharge, the applicant worked at CAARNG Stockton Combined Support Maintenance Shop (SCSMS) regional calibration facility. However, he was not retained due to his medical issues. A coworker of the applicant wrote a letter on his behalf. Mr. M has known the applicant for over 20 years and has worked with him in numerous capacities. As a servicemember himself, he expresses how impressed he is by the service the applicant gave to this country. Mr. M respects that the applicant always made sure to keep his command updated about his injuries and tried his hardest to continue to serve the country despite the difficulties. Mr. M believes there is no one more deserving of receiving a medical retirement then the applicant. j. Conclusion: In light of the facts and arguments presented, the applicant requests that this Honorable Board change the discharge status from medical discharge to a medical retirement and to provide him with his full disability retirement package for his countless years of selfless service to the United States Army. 4. Following service in the Regular Army, the applicant enlisted in the ARNG on 13 November 1986. His DD Form 214 shows he served in Kuwait/Iraq during the 2003-2004 period. 5. The applicant's Notification of Eligibility for Retired Pay at age 60 (20-Year Letter) is dated 2 June 2003. This form notified him that having completed the required years of service, he will be eligible for retired pay upon application at age 60. 6. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated 17 June 2006, shows the applicant injured his back and shoulder while performing police call and armory maintenance. On 27 June 2006, a line of duty determination was approved for this injury. 7. On 19 April 2007, the applicant was informed that the Qualitative Retention Board found him among the best qualified for retention in a unit of the ARNG and that their recommendation was approved by the State of California Deputy Adjutant General. 8. The applicant's Noncommissioned Officer Evaluation Report (NCOER) covering the period 1 October 2007 through 30 September 2008, his last NCOER on record, shows his rater and senior rater rated his overall potential for promotion and/or service in positions of greater responsibility as "among the best" and "superior (1)" respectively. 9. On 2 March 2009, the CAARNG issued Orders Number 61-1329 directing the applicant's discharge from the ARNG and his transferred to the USAR Control Group (Retired Reserve) effective 30 August 2009. 10. A DA Form 3349 (Physical Profile), dated 19 August 2009, shows a permanent profile for PTSD was not approved for the applicant. The State Surgeon's Office was identified as the issuing clinic. The form was not signed by the approving authority. 11. On 20 August 2009, the applicant was notified that the CAARNG State Surgeon completed a medical determination and he had been recommended for separation based on his medical condition. The disqualifying medical condition was not identified. 12. On 28 August 2009, the CAARNG issued Orders Number 240-1011 revoking Orders Number 61-1329, dated 2 March 2009. 13. On 28 August 2009, the CAARNG issued Orders Number 240-1008 discharging the applicant and transferring him to the USAR Control Group (Retired Reserve) effective 30 August 2009. 14. The applicant's NGB Form 22 shows he was discharged from the CAARNG on 30 August 2009 under the provisions of Section 260, California Military and Veterans Code (M/VC) and National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27a (not selected for retention by a qualitative retention board). He was transferred to the USAR Control Group (Retired Reserve). The form shows he was credited with 28 years of service for retired pay purposes. 15. The applicant's records contain an NGB Form 22A (Correction to NGB Form 22), dated 23 February 2010, showing his NGB Form 22 was corrected to show the authority and reason for his separation as Section 260, California M/VC and National Guard Regulation 600-200, paragraph 8-27l (placement on the permanent disability list). 16. During the processing of the applicant's previous case, an advisory opinion, dated 11 December 2012, was obtained from the NGB Patient Administration Officer. The opinion states that based solely on the documentation provided, it was his professional opinion that administrative relief was not necessarily warranted or possible in this case. He stated it appeared the applicant wanted to go through the Physical Disability Evaluation System (PDES) in order to receive a separation specifically for disability. The assumption was that the applicant sought this for some monetary separation benefit. The opinion further states: a. Entry or referral into the PDES requires a physical profile serial system (PULHES) code of either 3 or 4 and signed by both the profiling officer and a senior profiling officer (approving authority). The documentation provided in this request contains a profile with the function "S" (psychiatric) rated as a 4. However, this profile appears to be electronically signed by the profiling officer on 19 August 2009, only eleven days prior to his effective retirement date of 30 August 2009. This would not be enough time to process an individual for disability evaluation. Additionally, this profile is not countersigned by an approving authority. b. Since separation from service due to a determination from the PDES is based on the Soldier being in some current duty status, the fact that this Soldier is already retired means that special action would have to occur to bring him back into a duty status in order to process him for a condition that may or may not be considered unfitting for continued military duty. Even if the condition is considered unfitting, there is no guarantee at this point that the Soldier would receive a rating for the condition that warrant separation compensation despite the VA rating that he has received. c. If the profile had been reviewed and concurred with by an approving authority, the proper procedure should have been for the Soldier to be counseled prior to his retirement on the potential for PDES processing versus continuing his retirement processing. Upon such counsel, describing the potential benefits and drawbacks of both courses of action, it would then be left to the Soldier to decide which to pursue. d. It is possible that the Soldier did receive some form of counseling mentioned above, that he decided to continue with retirement processing, and then subsequently decided if may have been more advantageous to enter the PDES. However, this can neither be confirmed nor denied by the documentation provided. 17. During the processing of the applicant's previous case, the CAARNG Deputy State Surgeon provided an advisory opinion, dated 26 December 2012, in response to an inquiry from the Army Review Boards Agency (ARBA). The opinion states: a. The applicant had three open medical consults which were reviewed for medical determination by Dr. R on 18 August 2009. The applicant was recommended for separation in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraphs 3-32 and 3-33. Dr. R entered a permanent 4 (S4 (psychiatric)) profile on 19 August 2009, which was countersigned by the State Surgeon on 2 October 2009. The separation memorandum, dated 20 August 2009, was sent by certified mail and received by the applicant on 22 August 2009. Medical notes indicate the Lead Case Manager, Ms. F, was approached by the applicant and discussed options on or about 22 August 2009 regarding his medical issues and documents needed. b. The current Medical Review Officer (MRO), Captain C, reviewed the case file and opined that the applicant's medical record did not justify an S4 level profile, as there was no evidence of prior psychotic episode. If deployment is the only limiting factor, then S3 would have been appropriate. The VA provider note from 20 March 2009 did not clearly state that limitations on deployment were permanent. The official stated that while the applicant's attending VA provider expressed some concerns regarding the applicant's fitness for deployment, she recommended that he remain compliant on prescribed medications and with outpatient treatment for "at least several more months" from 20 March 2009. The official stated the applicant's NCOERs indicated his military performance was exceptional, which is not the typical performance of someone who is significantly impaired due to PTSD. c. The opinion further states that on 2 March 2009, the applicant was non-retained by an Enlisted Qualitative Retention Board (EQRB) and an order was processed for him to be discharged on 30 August 2009. Since the applicant was not referred to an MEB at the time of adjudication of the EQRB the applicant was presumed fit in accordance with Department of Defense Instruction (DoDI) 1332.38, and therefore the administrative board action took precedence. 18. During the processing of the applicant's previous case, an advisory opinion was also obtained from the NGB, Chief, Personnel Policy Division. The opinion states: a. Upon initial review in December 2011, the Chief, Surgeon General Division, NGB, did not recommend administrative relief in this case. The applicant's argument was that he was separated administratively due to PTSD, with a 60% disability rating from the VA. He stated because he was not allowed an MEB, he was unable to apply for CRSC or a military pension. b. The NGB Chief Surgeon General Division stated that in order for the applicant to be entered in the PDES he would require a physical profile of a permanent condition with a PULHES code of 3 or 4, and signed by both the profiling officer and a senior profiling officer (approving authority). He did receive a code of 4 in the S category; however, it was electronically signed by the profiling officer on 19 August 2009, which was 11 days prior to his effective retirement date of 30 August 2009. This would not have allowed enough processing time for a disability evaluation. Also, the profile provided was not signed by an approving authority. c. The CAARNG State Surgeon's office states that the Soldier's profile was countersigned by the approving authority on 2 October 2009. Separation proceedings had already been initiated and complete. According to the NGB Chief Surgeon General Division, had the approving authority signed the Soldier's profile in a timely manner, then the proper procedure would have been to counsel the Soldier prior to his retirement on the potential for PDES processing versus continuing his retirement processing. Based on the counseling the Soldier would have received the information regarding potential pros and cons to both courses of action, and would have been able to have made an informed decision. According to the CAARNG there are no documents to support that the Soldier was counseled in regards to his options prior to his discharge. d. On 26 December 2012 the CAARNG Deputy State Surgeon provided a memorandum explaining the separation determination for the applicant. On 2 March 2009, the Soldier was non-retained by the EQRB. An order was processed for his discharge, effective 30 August 2009. At the time of the EQRB, the Soldier was not referred to an MEB and was presumed fit in accordance with DODI) 1332.38. As a result, administrative actions took precedence. The applicant's three open medical consults were not reviewed for medical determination until 18 August 2009. The memorandum from the CAARNG G1, dated 20 August 2009, states that he was recommended for separation based on his medical determination, but does not specify the condition. An NGB 22A dated 23 February 2010 changed the original NGB Form 22 to show that he was placed on a permanent disability list and deleted item 23, not selected for retention. e. The State could not determine why there was a change on the applicant's NGB Form 22. The NGB Chief Surgeon General Division could not determine what the permanent disability list was, or whether there was a typo to mean permanent disability retirement list, or the intent was to place him on the Temporary Disability Retirement List as specified in Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). As stated previously, the State could not provide evidence showing that they provided the applicant instructions on how to appeal the medical determination for separation as mentioned in the memorandum dated 20 August 2009. f. It is recommended that the applicant's records be corrected by the Office of the State Surgeon General by contacting him to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders. In the event the applicant requires an MEB or PEB, the applicant will be afforded all of the benefits normally afforded to individuals on active duty who are undergoing an MEB and/or PEB. Should a determination be made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his administrative discharge and to issue him the appropriate separation retroactive to his original separation date with entitlement to any pay and allowances, less any entitlements already received. The NGB Chief Surgeon General Division agrees with this recommendation. g. The State is aware of this recommendation, but has not been able to provide any additional information to this case, that they have not already provided. 19. In the applicant previous case, the Board determined the following: a. The evidence of record showed he injured his back and shoulder in 2006 while performing police call and armory maintenance in the line of duty. However, there was no evidence indicating he was unable to perform his duties due to this injury. b. He was approved for retention beyond 20 qualifying years of service for retirement. Therefore, it is reasonable to presume he was considered fit for duty in accordance with Army Regulation 40-501. c. He was transferred to the Retired Reserve effective 30 August 2009 based on not being selected for retention after completion of 20 years or more of service. d. His physical profile, dated 11 days prior to his transfer to the Retired Reserve, shows an "S4" rating for PTSD was marked "not approved" by the profiling officer. The form does not show an approving authority signature. It appears this may be the earliest medical documentation related to PTSD available for the applicant. e. The MRO reviewed the applicant's case and opined that the applicant's medical record did not justify a S4 level profile, as there was no evidence of prior psychotic episode. The MRO stated the applicant's NCOERs indicated his military performance was exceptional, which is not the typical performance of someone who is significantly impaired due to PTSD. f. The State could not determine why there was a change to the applicant's NGB Form 22 showing he was placed on the permanent disability list with the entry deleted that showed he was separated due to being not selected for retention. The Chief, Surgeon General Division, NGB could not determine what the permanent disability was. g. Notwithstanding the NGB advisory opinion, the applicant's NCOER's did not reflect he was unable to satisfactorily perform the requirements of his duties. To the contrary, his ratings were that of "fully capable" and "among the best." h. Based on the available evidence and information provided by the Patient Administration Officer, NGB and CAARNG Deputy State Surgeon, it appears the applicant was properly administratively separated/retired due to not being selected for retention. In view of the foregoing, there is an insufficient basis for granting the applicant's request. 20. In support of the applicant's request for reconsideration he provided: a. A VA service-connected compensation verification letter showing he is receiving service-connected disability compensation, with a 60% disability rating, for conditions that include PTSD. b. A third-party statement, issued by Mr. M, a former member of the CAARNG, recommending the applicant receive a medical retirement because in his opinion, the applicant's non-retention was unfair based on the medical issues he was dealing with after his return from Operation Iraqi Freedom. The complete statement was provided to the Board for their review and consideration. 21. 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. 22. 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. 23. 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. 24. 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/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is again applying to the ABCMR requesting a referral to the Disability Evaluation System (DES) for PTSD. Counsel states in part: “On 20 August 2009, the California Army National Guard State Surgeon completed a medical determination in regards to the Applicant and recommended that he be separated from the military based on his medical conditions. This was only three (3) months before the end of his statutory/contractual service obligation. The Applicant was deemed to be 60% disabled due to PTSD. The Applicant was never sent to the Medical Evaluation Board. On 30 August 2009, the Applicant was discharged from the Army National Guard to the USAR Control Group (Retired Reserves) with a "Medical Discharge." c. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. Orders published by the Joint Force Headquarters of the California Army National Guard (CAANRG) show the applicant was discharged from the ARNG and transferred to the Retired Reserve effective 30 August 2009 d. This request was previously denied in full by the ABCMR on 23 May 2013 (AR20120011361). Rather than repeat their findings here, the board is referred to the record of proceedings for that case. This review will concentrate on the new evidence submitted by the applicant. e. MEDCHART contains just one Physical Profile (DA Form 3349). It is a permanent duty limiting profile for PTSD written on 19 August 2009 (11 days before retirement) and approved on 2 October 2009 (63 days after his retirement). There are no preceding temporary profiles which would have shown limitations prior to this single permanent profile. f. Paragraph E3.P3.5.1 of Department of Defense Instruction 1332.38 Subject: Physical Disability Evaluation (14 November 1996) states: “The DES compensates disabilities when they cause or contribute to career termination.” g. This concept from the DES’s governing document is incorporated into paragraph 3-2b of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012) states: 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit. An enlisted soldier whose reenlistment has been approved before the end of his or her current enlistment, is not processing for separation; therefore, this rule does not apply. h. The time frame during which the presumption of fitness rule is applicable is known as the presumptive period and is the 12 months prior to a service member’s discharge from the Service for any of the reasons outlined in E3.P3.5.2 part 3 to enclosure 3 of Department of Defense Instruction of Department of Defense Instruction 1332.38 Subject: Physical Disability Evaluation (14 November 1996). When a service member is referred to the DES during this period, the member is found fit by presumption, that is, the medical condition(s) did not cause or contribute to their career termination and so are non-compensable. For the Army, the date of referral to the DES is the date the Soldier’s profile is signed by the approval authority. The presumptive period for this applicant is addressed in paragraph {Pick One}: E3.P3.5.2. Presumptive Period. Service members shall be considered to be pending retirement when the dictation of the member’s MEB occurs after any of the circumstances designated in paragraphs E3.P3.5.2.1. through E3.P3.5.2.4., below. E3.P3.5.2.1. When a member’s request for voluntary retirement has been approved. Revocation of voluntary retirement orders for purposes of referral into the DES does not negate application of the presumption. E3.P3.5.2.2. An officer has been approved for Selective Early Retirement. E3.P3.5.2.3. An officer is within 12 months of mandatory retirement due to age or length of service. E3.P3.5.2.4. An enlisted member is within 12 months of his or her retention control point (RCP) or expiration of active obligated service (EAOS) but will be eligible for retirement at his or her RCP/EAOS. i. There are three circumstances in which the presumption of fitness is overcome. Paragraphs E3.P3.5.3 provide that: The presumption of fitness rule shall be overcome when: Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or The condition for which the member is referred is a chronic condition and a preponderance of evidence establishes that the member was not performing duties befitting either his or her experience in the office, grade, rank, or rating before entering the presumptive period. When there has been no serious deterioration within the presumptive period, the ability to perform duty in the future shall not be a consideration. j. None of these situations appear to have been applicable to the applicant’s PTSD. Hence, the applicant would have been found fit by presumption and not be eligible for disability compensation. He would have proceeded with his non-regular retirement for 20 or more years of service. k. A VA Decision Review – Officer Decision (AKA “VA Code Sheet”) shows the applicant was granted a service-connected disability rating of 30% for PTSD effective 18 December 2006 which was increase to 100% effective 17 March 2010. l. His final NCO Evaluation report was an annual with a thru date of 30 September 2008. His rater top blocked him as “Among the Best” and his senior rater top blocked him (1’s on a scale of 1-5) for both overall performance and overall potential opining: “send to BNCOC [Basic NCO Course]Phase II as soon as possible performs at the next higher grade demonstrates potential above and beyond his peers promote ahead of peers when possible” m. Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990) 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 his or her office, grade, rank, or rating.” n. It is the opinion of the ARBA medical advisor that a referral of his case to the DES remains unwarranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The evidence shows the applicant served in the ARNG from 13 November to 30 August 2009. He was not selected for retention by a qualitative retention board) and he was transferred to the Retired Reserve with 28 years of service for retired pay. a. The Board was persuaded by the NGB’s initial finding that on 2 March 2009, the applicant was not retained by an Enlisted Qualitative Retention Board (EQRB) and an order was processed for him to be discharged on 30 August 2009. Since he was not referred to an MEB at the time of adjudication of the EQRB the applicant was presumed fit in accordance with DOD Instructions and therefore the administrative board action took precedence. b. The Board was also agreed that 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit. The Board was persuaded by the medical officer’s finding that the applicant’s services was not interrupted by a disability. He was being processed for retirement based on his non-selection by the EQRB. His continued performance of assigned duty created a presumption that he was fit. The Board agreed that the applicant did not provide sufficient evidence to overcome the presumption of fitness. 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 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 to amend the decision of the ABCMR set forth in Docket Number AR20120011361 on 23 May 2013. 8/15/2023 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. National Guard Regulation 600-200, paragraph 8-27a, in effect at the time, shows that Soldiers not selected for retention by a qualitative retention board in accordance with chapter 4, Army Regulation 135-205 could elect to be reassigned to the USAR Control Group (Reinforcement or Retired Reserve). 2. Army Regulation 135-205 (ARNG and USAR Enlisted Personnel Management) provides policy governing the selective retention of Soldiers in ARNG USAR. It states the purpose of the Qualitative Retention Program (QRP) is to determine retention potential and acceptability for reenlistment or extension of enlistment. In general, the QRP provides for a review every 2 years of Reserve Component Soldiers serving who have 20 or more years of qualifying service for non-regular retired pay and who are within the zones of consideration. 3. Army Regulation 40-501 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 4. Army Regulation 635-40 prescribes the Army Disability Evaluation ystem (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; 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. An MEB 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 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 physical evaluation board 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. The Chief, Army Reserve will ensure eligible Soldiers of the USAR Ready Reserve are referred for evaluation by MAR2 and DES, as applicable, in a timely manner, and in accordance with this regulation. h. 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). i. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//