IN THE CASE OF: BOARD DATE: 6 September 2023 DOCKET NUMBER: AR20230002320 APPLICANT REQUESTS: in effect, physical disability retirement with a 100 percent disability rating. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Narrative summary for Admin Return for MEB * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) * Department of Veterans Affairs (VA) service-connected disabilities letter * personal statement to the Board 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: a. Her gallbladder was surgically removed by a United States Army medical doctor at 121st General Hospital while stationed in Korea in 2003. Prior to that surgery several months earlier, she was given a diagnosis of acute on chronic pancreatitis. She had several tests done as well as procedures and eventually the cholecystectomy while in Korea. She remembers the doctor who performed her surgery waking her up in recovery and saying there was good news and bad news. The good news was the surgery went well and the bad news was that he didn't find anything. She was completely dumbfounded. She has wondered over the years why did he surgically remove her gallbladder. Like an idiot she trusted these doctors. She felt and still feels as if she were guinea pigged by Internal Medicine doctors while stationed in Korea. The last doctor she saw at 121st General Hospital in October 2003, looked at her and said he doesn't even know why she was still there. They had no gastroenterologists in country. He was sending her back stateside for an administrative return for a Medical Evaluation Board (MEB). b. She was too naive and incompetent back then to know that she should have never been in Korea with a diagnosis of acute on chronic pancreatitis and requiring surgery. She didn't know that her life would be changed forever following her medical discharge from Army. Her body has never been the same. She has experienced so many medical problems over the years with multiple work ups and diagnoses following her medical discharge from the Army. Her medical issues that begin while in service have disrupted her life many times. c. She wants financial restitution if possible. She can't get her gallbladder back. She can't get time back. She can't erase the pain and suffering that she has experienced over the years. She is advocating for herself now because she knows better. She has eight months of medical documents from 2003 while stationed in Korea that trigger negative emotional memories. She still cries when she reads over her medical records from back then. She has several years of medical documents from being cared for by the Department of Veterans Affairs (VA) since being medically discharged. d. To this day, she still has digestive system impairment issues in addition to other service connected disabilities that cause limitations and or impairments. She has problems trusting doctors. She has decided for the most part to practice holistically in regard to her medical care. She has taken more medications than she cares to remember over the years. Some which were taken off the market because they caused cancer. 3. The applicant underwent a medical examination on 16 May 2002 for enlistment purposes. Her DD Form 2808 (Report of Medical Examination) shows she was found qualified for service an assigned a physical profile of 111111. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 4. The applicant enlisted in the United States Army Reserve on 10 July 2002 for a period of 8 years in the delayed entry program (DEP). She was discharged from the DEP enlisting in the Regular Army for a period of 4 years on 19 November 2002. 5. The applicant completed her required training and was assigned to Camp Casey, South Korea effective 16 April 2003. 6. A memorandum, with the subject: Notification of Administrative Return of Army Military Patient to CONUS for Medical Reasons, dated 5 November 2003, shows the applicant was to be reassigned to Medical Holding Unit, Eisenhower Army Medical Center, Fort Gordon, GA with an anticipated reporting date of 1 December 2003. A Pre- separation Counseling Checklist was prepared on 1 December 2003. 7. A Narrative Summary (NARSUM), dated 20 December 2004, based upon a physical examination performed by the attending physician on 16 December 2004 shows: a. Diagnosis(es): (1) Chronic recurrent right upper quadrant and epigastric pain status post cholecystectomy in 2003. Etiology is uncertain if it is related to the cholecystectomy. At one time it was thought to be due to chronic pancreatitis but there has been no evidence of pancreatic inflammation on any scans in 2004 and elevated amylases were due to salivary gland amylases and not pancreatic amylase in 2004. Line of duty: yes. Existed prior to service: no. Service aggravated: no. (2) Gastroesophageal reflux disease (GERD). Line of duty: yes. Existed prior to service: no. Service aggravated: no. (3) Irritable bowel syndrome. Line of duty: yes. Existed prior to service: no. Service aggravated: no. b. Chief Complaint: Epigastric and right upper quadrant pain c. History of Present Illness: This [applicant] returns for follow up on chronic abdominal pain that she has been having primarily in her epigastrium and right upper quadrant for the past year and a half. She has been having problems with abdominal pain ever since she had pancreatitis in April 2003. This was assumed to be caused by gallstones. She was stationed in Korea at that time. She underwent an evaluation in Korea which included a HIDA scan which showed some biliary dyskinesia and an endoscopic retrograde cholangiopancreatography (ERCP) that reported some stones in the gallbladder but not in the bile duct. She finally underwent a laparoscopic cholecystectomy in Korea on 11 August 2003 at which time chronic cholecystitis was noted but no stones were reported. She continued to have problems with abdominal pain after having her gallbladder taken out and she underwent a second ERCP in Korea. This is reported as being normal except for a question of some papillitis and a sphincterotomy was done at that time. She was subsequently transferred back to the United States. Since that she has continued to have episodes of pain and these may occur on an intermittent basis. The pains may be sharp or dull in nature. They tend to occur in the epigastrium or right upper quadrant. The time of occurrence in unpredictable and she doesn’t know what brings many of the episodes of pain on. Exertion may make the pain worse but does not seem to cause the pain. A typical episode of pain my last from half an hour to an hour and may occur several times a day. On some days she may have no pain at all. She states the pains frequent will be up to 6 or 7 on a scale of 10 when they occur and on rare occasions have been as bad as 10/10. She does not know of anything that she can do that makes the pain better. She has occasionally been on Percocet or Demerol for the pain., she prefers not to take them. She may lie down and that seems to help the pain. Sometimes she has nausea with the pain but no vomiting. She also has had problems with acid reflex with heartburn but differentiates that from her other pain and she has noted that she had regurgitation at the back of her throat. Her weight has been stable over the past year. She also has had episodic problems with diarrhea where she could have multiple bowel movements during the day with some mucus until the movements become runny or watery. She might have constipation for several day. At one point she thought to have problems with chronic pancreatitis and has been tried on pancreatic enzymes specifically Ku-Zyme with meals. At one time she thought perhaps it helped but most recently she does not think it helps at all. She has been noted to have elevated Amylases in the past but normal Lipases and an Amylase isoenzyme was done recently that showed elevated salivary Amylase and normal pancreatic Amylase. d. Past Medical History: She had acute pancreatitis thought secondary to biliary problems in April 2003. She has had problems with acne which has been treated in the past with Accutane but not recently. She had some noncorrosive gastritis at one point that was helicobacter pylori negative and has had problems with hammer toes. e. Past Surgical History: Includes a laparoscopic cholecystectomy done in Korea 11 August 2003 and bilateral foot surgery for hammer toes done in April of 2004. f. Review of Systems: She complains of some problems with pains in her knee and ankle joints when the weather is wet or cold. g. Physical Examination: …Her abdomen was flat, soft, it was slightly tender in the epigastrium and the right upper quadrant and diffusely elsewhere in the abdomen but there was no guarding on palpation and no rebound. She had positive bowel sounds, no masses. Murphy sign was negative and the liver was normal on palpitation. Her abdomen also had several small scares from a laparoscopic cholecystectomy. h. Laboratory and X-Ray Data: Recent laboratories done in September showed her to have normal lipase of 43, normal liver enzymes, normal CHEM-10 panel, and normal CBC with a white count of 8.2, hematocrit of 42.7, MCV of 83 and a platelet count of 303,000. On 6 October 2004 she again had normal liver function tests. Tests done at Eisenhower Army Medical Center to evaluate her pain included an abdominal CT done 18 December 2003. This showed a normal liver, normal pancreas, a small amount of pneuobilia with evidence of a laparoscopic cholecystectomy and an inhomogeneous patter of spleen enhancement with widely scattered irregular focal low densities areas of questionable significance. She underwent esophagogastroduodenoscopy (EGD) on 6 February 2004 that was a normal examination with normal duodcrial biopsies. A colonoscopy done 6 February 2004 was a normal examination with normal colonic biopsies. Right upper quadrant Ultrasound done 18 February 2004 was normal and they stated that the common bile duct was 3 millimeter and there was no evidence of intrahepatic ductal dilation. An ERCP was done on 1 April 2004 that shoed a bifid major ampulla with the duodenant opening being flat to the duodenal wall due to prior sphincterotomy. The common bile ducted appeared mildly dilated at 9 millimeters. There are no biliary strictures, and the pancreatic duct was normal. A bile duct stent was placed in an attempt to decompress the bile duct to see if this would help her abdominal pain. However, she had recurrent abdominal pain several weeks later. A right upper quadrant ultrasound done 6 October 2004 showed a normal liver and no evidence of intra or extrahepatic duct dilation with the bile duct measuring 3 millimeters with the biliary stent in place. On 7 October 2004 and EGD was preformed to remove the common bile duct stent because she had recurrent pain not helped by the stent. Some mild nonerosive gastritis was noted and she was Helicobacter pylori negative on biopsy. A colonoscopy was done on 26 October 2004 because she reported recurrent diarrhea with a small amount of hematochezia. This was normal to the terminal ilcum. A small bowel follow through was done 5 November 2004 and this was normal. i. Plan: …She does not feel that she is capable of returning to full duty in terms of if she was deployed to areas where definitive medical care is not available, she would probably end up being evacuated back home again when she had any further exacerbation of pain. She is therefore being referred tot the MEB under Army Regulation (AR) 40-501 Chapter 3 Section 5 for abdominal and gastrointestinal diseases and Chapter 6 for abdominal and gastrointestinal surgery. There does not appear to be a specific paragraph to cover her condition in either of those sections. Recommend she be evaluated for being placed on the status where she cannot be deployed to any areas in which definitive medical care is not available, it will have to be decided by the MEB whether she should remain on active duty or be placed on temporary duty retirement levy. TDRL status is probably the best option. 8. An additional NARSUM was completed on 12 January 2005 based on the physical examination performed by the attending physician on 16 December 2004 and associated NARSUM. The recommendation states the applicant fails to meet retention standards in accordance with AR 40-501, Chapter 3, paragraph 3-41e(1). It is recommended that she be presented to the Physical Evaluation Board for further adjudication. 9. A DA Form 3349 (Physical Profile) was issued the applicant on 20 January 2005 assigning her a permanent physical profile of 311111. She was restricted from strenuous exercise, no APFT, unit PT or rucksack. All to exercise at own pace. 10. MEB Proceedings, dated 4 February 2005, shows the applicant was found to have chronic right upper quadrant and epigastric abdominal pain post status cholecystectomy. She was referred to the PEB. She indicated she did not desire to continue on active duty and agreed with the findings and recommendation. 11. A PEBLO Counseling Checklist/Statement shows the applicant was counseled concerning the PEB process which she acknowledged with her signature on 10 February 2005. 12. The applicant’s case was transmitted to the PEB on 14 February 2005. A DA Form 199 shows: a. An Informal PEB convened on 15 February 2005, and found the applicant physically unfit with a recommended rating of 10 percent and that her disposition be separation with severance pay. b. The applicant’s unfitting condition was chronic right upper quadrant and epigastric abdominal pain post status cholecystectomy. Rated as mild symptoms. c. The PEB made the following administrative determinations: (1) The disability disposition is not based on disease or injury incurred in the line of duty in combat with an enemy of the United States and as a direct result of armed conflict or caused by an instrumentality of war and incurred in the line of duty during a period of war as defined by law. (2) Evidence of record reflects the individual was a member or obligated to become a member of an Armed Force or Reserve thereof, or the NOAA or the USPHS on 24 September 1975. (3) The disability did not result from a combat-related injury under in 26 USC 104. d. The applicant concurred and waived a formal hearing of her case on 28 February 2005. e. The proceedings were finalized on 28 February 2005. 13. A new Pre-separation Counseling Checklist was issued on 19 April 2005. 14. The applicant was honorably discharged on 19 May 2005 for disability, severance pay. She was credited 2 years 6 months 1 days net active service this period. 15. The applicant provided: a. A memorandum, with the subject: Narrative summary for Admin Return for MEB, which shows the applicant was returned CONUS due to chronic pancreatic despite maximal surgical therapy still occurs. Chronic pain is also an ongoing issue. Due to this as well as the inability of the patient to perform any PT due to pain necessitates an admin return for an MEB as well as further treatment by a gastroenterologist. b. A VA service-connected disabilities letter, dated 16 June 2021 showing a combined rating of 90 percent for her service-connected disabilities as follows: * 60 percent - cholecystectomy and pancreatitis to include irritable bowel syndrome (previously rated as digestive system impairment) * 50 percent - major depression (claimed as military sexual trauma, anxiety, and insomnia) * 40 percent - lumbar degenerative disc disease (claimed as low back pain) * 20 percent - right lower extremity radiculopathy * 20 percent - left lower extremity radiculopathy * 10 percent - right knee strain * 10 percent - allergic rhinitis * 0 percent - xerostomia (claimed as chronic dry mouth) * 0 percent - internal hemorrhoids * 0 percent - scars * 0 percent - status post arthroplasty, acquired deformity hammertoe third and fourth toes, right foot with residual scar * 0 percent - status post arthroplasty, acquired deformity hammertoe third and fourth toes, left foot with residual scar * 0 percent - chronic acne 16. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 17. 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. 18. 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. 19. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 20. 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 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 an increase in her military disability ratings to 100% with a subsequent change in her disability discharge disposition from separated with severance pay to permanent retirement for physical disability. She states: “The correction should be made because I was wronged by the medical doctors in Korea. I should’ve never been sent to Korea after being treated in the ER (Ft. Gordon, GA) in 2003 and then treated by internal medicine the entire 8 month in Korea including having surgery only to be sent back to the States early for a medical board ... I do not want to talk about MST that occurred while in Korea.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. Her DD 214 shows she entered the regular Army on 19 November 2002 and was discharged with disability severance pay on 19 May 2005 under provisions in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). d. From the 27 October 2003 Narrative Summary for the applicant’s administrative transfer from Korea to Ft. Gordon, GA, for her to undergo a medical evaluation board (MEB): Pt [patient] is a 23 y/o active-duty female with a 7-month history of chronic abdominal pain. Pt was diagnosed with gallstone pancreatitis. She had a cholecystectomy as well as 2 ERCP [endoscopic retrograde cholangiopancreatography] with sphincterotomy. The patient continues to have episodes of mild pancreatitis as well as chronic abdominal pain, resistant to fasting ... Chronic pancreatic despite maximal surgical therapy still occurs. Chronic pain is also an ongoing issue. Due to this as well as the inability of the patient to perform any PT [physical training] due to pain necessitates an admin return for an MEB as well as further treatment by a gastroenterologist.” e. On 4 February 2005, an MEB found her referred condition to fail the medical retention standards or AR 40-501, Standards of Medical Fitness, and they recommended her case be referred to a physical evaluation board (PEB) for adjudication. f. Excerpts from the MEB narrative summary: “History of Present Illness: April 2003 she developed abdominal pain. It was diagnosed as gallbladder disease with sludge and in August 2003 she had laparoscopic removal of the gallbladder. She said she healed fine and felt good for about one month. At that time, she had acute pancreatitis and in September 2003, an ERCP was done and she was told they found scare tissue in the common bile duct and had to dilatate it … She has had extensive work-up by a gastroenterologist at Eisenhower Army Medical Center … Unfortunately, they have not been able to find a reason for the pain and stated that she has chronic upper abdominal pain which cannot be resolved, therefore she was referred to a medical board ... They discussed that they feel she has some gastroesophageal reflux disease and she is taking Peracid 30mg a day with good control for symptoms. They also discussed that she has irritable bowel syndrome … Current Condition and Functional Status: At this time, she feels that she would be able to carry and fire a weapon and don a gas mask and MOPP [Mission Oriented Protective Posture] equipment, but would by unable to do any of the other functional activities required of soldiering … She in unable to do any of the functions of the Army physical Fitness Test … She is unable to do any unlimited aerobic modified exercises … She is able to walk and swim at her own pace and distance. She can do upper and lower body weight training.” g. On 10 February 2005, the applicant agreed with the MEB’s findings and recommendation. h. On 15 February 2005, the applicant’s informal PEB found her “Chronic Right Upper Quadrant and Epigastric Pain Status Post Cholecystectomy” to be her sole unfitting medical condition for continued military service. Using the VA Schedule for Rating Disabilities (VASRD), they derived and applied a 10% rating to the disability and recommended the applicant be separated with disability severance pay. On 28 February 2005, after being counseled on the Board’s findings and recommendation by her PEB liaison officer (PEBLO), she concurred with the PEB and waived her right to a formal hearing. i. The applicant’s military disability was rated using VASRD diagnostic code 7318 – Gall bladder, removal of.” Her symptoms as noted in her narrative summary are best represented by a 10% rating: 7318 Gall bladder, removal of: With severe symptoms ..................................30 With mild symptoms .......................................10 Non-symptomatic .............................................0 j. She could also have been rated under diagnostic code 7347 – Pancreatitis. However, while this may have more closely approximated the working diagnosis, it did not comport with her symptomatology. The ratings for 7347: 7347 Pancreatitis: With frequently recurrent disabling attacks of abdominal pain with few pain free intermissions and with steatorrhea, malabsorption, diarrhea and severe malnutrition ................................................................................100 With frequent attacks of abdominal pain, loss of normal body weight and other findings showing continuing pancreatic insufficiency between acute attacks ..........................................................................................60 Moderately severe; with at least 4-7 typical attacks of abdominal pain per year with good remission between attacks ...........................................30 With at least one recurring attack of typical severe abdominal pain in the past year ...............................................................................................10 k. Review her records in JLV shows he has been awarded multiple VA service- connected disability ratings, including a 60% rating for inflammation of the pancreas and 50% rating for major depressive disorder. 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. l. It is the opinion of the ARBA Medical Advisor that neither an increase in her military disability rating nor a referral of her case back to the Disability Evaluation System is warranted. 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 Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the medical review, the Board concurred with the advisory official finding that neither an increase in her military disability rating nor a referral of her case back to the Disability Evaluation System is warranted. The Board determined the applicant was counseled on the Board’s findings and recommendation by her PEB liaison officer (PEBLO), she concurred with the PEB and waived her right to a formal hearing. Based on the preponderance of evidence, the Board determined there is insufficient evidence to support the applicant’s contentions for a physical disability retirement with a 100 percent disability rating. Therefore, the Board denied relief. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. 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. 4. 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. 5. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Once a determination of physical unfitness is made, all disabilities are rated using the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 6. AR 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. 7. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002320 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1