IN THE CASE OF:  
 
  BOARD DATE: 19 September 2023 
 
  DOCKET NUMBER: AR20230002551 
 
 
APPLICANT REQUESTS: in effect, 
 
• upgrade of his under other than honorable conditions discharge to honorable 

• physical disability retirement, placement on the temporary disability retired list (TDRL), or a regular military retirement  

• personal appearance before the Board 


 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• legal brief (8 pages) 

• Military Personnel Records Jacket (MPRJ) documents (21 pages) • Separation physical (4 pages) 

• Enlistment physical (4 pages) 

• Medical documents (74 pages) 





 
 
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 his discharge was unfair at the time and remains so now. His discharge was both substantively and procedurally defective. He was erroneously discharged from the U.S. Army. He should have received medical benefits and an honorable discharge. He should be allowed to medically retire. He should be given liberal consideration for this upgrade. Counsel for the applicant states in part in his 8-page brief: 
 
 a.  The member was seriously injured during military service and should have been medically evaluated and separated as service connected and unfit for duty. The 
applicant became aware of the existence of the error upon consultation over the years and has tried to correct the problem. 
 
 b.  The applicant requests, through counsel, this Board to assess him for an upgrade to an honorable discharge, medical retirement, temporary disabled retirement list, or a military retirement as the applicant was wrongfully separated from the military without proper medical disability system processing, resulting in the denial of a medical retirement, temporary disabled retirement, or a retirement and the benefits they confer. This discharge is inequitable and has served its purpose. 
 
 c.  Counsel states the appeal is based on three errors: (1) the underlying basis of separation was procedurally defective at the time of the discharge; (2) the adverse action, to include the administrative discharge, was unfair at the time; and (3) the discharge, is inequitable now. On behalf of the applicant, counsel respectfully requests that the Board assess the applicant for a medical retirement, temporary disabled retirement, or a military retirement. 
 
 d.  A preponderance of the evidence shows that an error or injustice exists, the applicant respectfully requests this appeal be granted. The applicant asks that any negative documents be set aside in their entirety. Counsel provides legal standards for the authority to correct this record on pages 3-6 of his brief. 
 
 e.  Counsel provides background of the applicant’s time in service. The applicant was first shipped to Fort Sill where he did get a small disciplinary mark for trying to mail a turtle to his mother and the turtle ate through the box. From there, he was deployed to Germany. He liked Germany for a while, but ultimately, he left because he was being raped and sexually assaulted by his sergeant. He never reported it - he instead reenlisted. This took a mental toll on him because he was young and nonconfrontational. He did not know how to handle it, so he simply left and never talked about it. 
 
 f.  He was then stationed in Fort Belmore, Washington, where he was pushed and knocked down the stairs by some rough housing Soldiers. He ruptured his vertebrae and was unable to walk for a year. He never said anything about who did it because the other Soldiers asked him not to get them in trouble. While he was in the hospital, he was given a medical discharge. However, the hospital was very traumatic for him, an instead of returning for more tests he went absent without leave (AWOL). 
 
 g.  The applicant says he was young and immature. He had dropped out in the 9th grade and at the time struggled to read and write. The applicant affiliated the Army with trauma, and he was unsure how to handle it. He went back home and worked as an ambulance driver, but his sister turned him in, and he had to find a lawyer. He wrote a 
statement just to please his lawyer, and he took the "undesirable" discharge. He tried to appeal this twice, but both times it was denied. 
 
 h.  Counsel argues there is a procedural defect in this case. The request for administrative separation can be both command-initiated and initiated by the service-member. In this case, there was a hasty command-initiated request for separation when the applicant should have been properly diagnosed with a service-connected injury. During a command-initiated discharge request, under Army Regulations (AR) disposition through medical channels takes precedence over administrative separation processing. In this case there was a rush to judgment that the applicant should be discharged for reasons other than a finding that applicant was determined to be unfit before a physical evaluation board (PEB). He was never referred to the Medical Evaluation Board/Physical Evaluation Board, nor considered for the temporary disabled retirement list or a military retirement. Counsel’s entire 8-page brief is available for the Board’s review. 
 
3.  The applicant enlisted in the Regular Army on 6 February 1968, for a period of 3 years. He held military occupational specialty 36K (Field Wireman). He serve din Germany from 16 July 1968 to on or about 13 December 1969. 
 
4.  On 12 November 1968, he was honorably discharged for immediate reenlistment. He completed nine months and six days net service this period. He reenlisted on 13 November 1968 for a period of four years. 
 
5.  His DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost Under Section 972, Title 10, U.S.C and Subsequent to Normal Date ETS) he was AWOL from 16 April – 13 May 1970 (28 days). 
 
6.  A Clinical Record Narrative Summary, 19 May 1970, shows the applicant passed out and fell down the stairs striking his back. He could not walk after the fall. He came to the Emergency Room and was admitted to the Orthopedic Service. The patient had been told approximately nine years ago by a family doctor that he had epilepsy. The patient did not talk about his epilepsy at the induction center. He takes no anticonvulsive medications. He denies weight loss, chills, and fever. He had consultations with cardiology, psychiatry, and orthopedics. His diagnosis was: 
 
• seizure disorder, poorly controlled on medication; Line of duty – No; Existing Prior to Service – not service aggravated; P-4 profile 

• elevated spinal fluid protein, etiology unknown, no organic lesion found 

• recommendation was the applicant be medically separated from the Army 


 
7.  Medical Board Proceedings, 19 May 1970, shows he was medically unfit. His medical condition was seizure disorder, poorly controlled on medication. The board 
recommended that the applicant be presented to a PEB. There does not appear to be a determination made on whether the applicant was or was not medically qualified for continuance on active duty. There also does not appear to be a board recommendation for continuation on active duty or processing for separation made. 
 
8.  The applicant received non-judicial punishment on 22 July 1970, for being AWOL from 0001 hours, 16 April 1970 until 0800 hours, 14 May 1970. He was reduced to the grade E-1, suspended for a period of 90 days, and restricted to the confines of Madigan General Hospital for a period of 60 days. 
 
9.  DA Form 20 shows in item 44 AWOL 25 August -6 December 1970. 
 
10.  On 8 December 1970, he was admitted to Madigan General Hospital for passing out spells. A Narrative Summary states, in part, the applicant was diagnosed with seizure disorder poorly controlled on medication (line of duty: no, existed prior to service, not service aggravated), and elevated spinal fluid protein, etiology unknown, no 
organic reason found. It was recommended that the patient be medically separated 
from the Army. A medical board was held, and this recommendation was concurred with. Medical board proceedings were prepared, signed, and said to be sent forward to the PEB when the patient went AWOL from the Medical Holding Ward. On 8 December 1970, he returned from being AWOL, apparently had done well medically while he was on his medication but ran out a few weeks prior to his return and had one seizure on 6 December 1970. He was placed on the ward and again paperwork to forward his board was again instituted. He was sent out on pass by the House Officer over New Years and apparently was arrested by the local police for a driving violation. Apparently, he had a trial and was released, but the patient never returned to Madigan General Hospital, and on 4 January 1971, he was reported as being officially AWOL. The date at the time was 14 January 1971. The patient is still AWOL, and it has therefore been decided that he be dropped from patient status. 
 
11.  A DD Form 458 (Charge Sheet) shows court martial charges were preferred on 28 September 1971, for: AWOL from 25 August to 7 December 1970 and from 22 January to 22 September 1971 
 
12.  On 30 September 1971, the applicant underwent a separation physical and was found qualified for separation.  
 
13.  On 30 September 1971, the applicant requested a discharge for the good of the service under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He indicated he had consulted with counsel and was advised of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effect of this discharge, and of the rights available to him the applicant voluntarily 
requested discharge for the good of the service UP of AR 635-200, chapter 10. He understood: 
 
• he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate 

• he could be deprived of many or all Army benefits, that he may be ineligible for many, or all benefits administered by the Veteran’s Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law 

• he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge 


 
14.  On 6 October, 20 October and 22 October 1971, his chain of command recommended separation with an Undesirable Discharge Certificate. 
 
15.  On 28 October 1971, the separation authority approved separation for the good of the service UP of AR 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate. 
 
16.  Accordingly, he was discharged under other than honorable conditions on 28 October 1971. His DD Form 214 shows he was discharged in the rank/grade of private/E-1, under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions discharge (Separation Code 246 and Reentry Code 3/3B).  His DD Form 214 shows he completed 2 years and 6 months of net service this period. He had 442 days lost under 10 USC 972. 
 
17.  On 20 October 1980, the Army Discharge Review Board (ADRB) after careful consideration of his military records and all other available evidence, has determined that he was properly discharged. Accordingly, his request for a change in the type and nature of his discharge has been denied. 
 
18.  The applicant provides: 
 
 a.  MPRJ documents (21 pages) consisting of enlistment documents, AWOL documents, orders, and separation documents. 
 
 b.  Separation physical (4 pages) related to his condition at time of separation. 
 
 c.  Enlistment physical (4 pages) showing normal clinical evaluation resulting in him being qualified for enlistment. 
 
 d.  Medical documents (74 pages) in support of his claim. 
19.  AR 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of this regulation provides, in part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. 
 
20.  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. 
 
21.  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. 
 
22.  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. 
 
23.  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) and an upgrade of his 28 October 1971 discharge characterized as under other than honorable conditions.  He states through counsel: 
“The applicant requests an Honorable discharge.  His discharge was unfair at the time and remains so now.  Applicant requests a medical discharge with full 
medical retirement benefits.  His discharge was both substantively and procedurally defective 
The applicant was erroneously discharged from the US Army.  He should have received medical\benefits and an Honorable discharge.  He should be allowed to medically retire.  He should be given liberal consideration for this upgrade.”  
    c.  The Record of Proceedings details the applicant’s military service and the circumstances of the case.  His DD 214 for the period of Service under consideration shows he entered the Regular Army on 6 February 1968 and was discharged under other than honorable conditions on 28 October 1971 under the provisions provided in chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel: Discharge for the Good of the Service.  The DD 214 states the applicant had a total of 442 days lost under Title 10, United States Code, Section 972.    
    d.  Counsel contends the polices of liberal consideration are applicable to the facts of this case.  However, the Liberal Consideration Policies outlined in the Secretary Hagel and Undersecretary Kurta memorandums address a former Service Member’s request to modify the discharge characterization of their service based on a pre-discharge service incurred mental health condition and are not applicable to disability processing.  
    e.  On 19 May 1970, a medical evaluation board determined the applicant had a seizure disorder which failed medical retention standards and recommended his case be referred to a physical evaluation board.  Excerpts from the medical evaluation board narrative summary: 
“History of Present Illness · This 20-year-old Caucasian male fainted while climbing the stairs on the evening of admission and fell down, striking his back ...  He came to the Emergency Room and was- admitted to the Orthopedic Service.  The patient had been told approximately nine years ago by a family doctor that he had epilepsy.  The patient did not tell about his epilepsy at the induction center.  He takes no anticonvulsive medications ... 
Diagnosis: 1. Seizure disorder, poorly controlled on medication.  
LD [line of duty]: No:  EPTS [existed prior to service – not service aggravated.”  
    f.  On 14 July 1970, the applicant received a field grade Article 15 for a period of absence without leave (AWOL) from 16 April 1970 thru 14 May 1970. 
    g.  A 28 September 1971 Charge Sheet (DD Form 458) shows the applicant was charged with two periods subsequent periods of AWOL: 25 August 1970 thru 7 December 1970 and 22 January 1971 thru 22 September 1971. 
    h.  On his pre-separation Report of Medical History, the applicant wrote “I am an epileptic and feel good right now.  But I black out quite often.”  On the accompanying Report of Medical Examination, the provider documented a normal examination, that the applicant had mildly abnormal vision (left eye 20/25), and was qualified for separation.  He did not list a seizure disorder in block 74 – Summary of Defects and Diagnoses. 
    i.  On 30 September 1971, the applicant requested discharge for the good of the service under provisions in chapter 10 of AR 635-200.  He stated in part: 
“I have had one Art 15 for possession of government property. 
I am now pending charges for an AWOL dating from Jan 71 to 25 Sep 71 from Fort Lewis, Washington. 
I was convicted on 22 Sep 71 in Pomona Superior Court Of Forgery.  I am to appear 19 Nov 71 for sentencing.” 
    j.  The commanding general of the United States Army Training Center, Infantry, and Fort Ord approved his request with the directive he be separated with an “Undesirable Discharge Certificate” and with “Immediate reduction of enlisted man to the lowest enlisted grade is directed UP para 7-30b(3) AR 600-200 [Enlisted Personnel Management System]. 
    k.  Had the applicant remained present for duty and his case reached the PEB, he would likely have been found unfit.  However, the condition would have been non-compensable as it had existed prior to service and not permanently aggravated by his military service. 
    l.  In addition, his actions made him ineligible for referral to a PEB.  Paragraph 1-2c of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (17 August 1970) states: 
“A member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.” 
    m.  Paragraph 1-4e of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 October 1970) provides similar guidance: 
“An enlisted member may not be referred for disability processing if he is the subject of action which may result in an undesirable discharge unless the officer exercising general court-martial jurisdiction has determined that the disability was the cause or substantial contributing cause of the misconduct which led to 
administrative discharge proceedings or has otherwise made a determination that the member will be referred for disability processing.” 
    n.  Review of his records in JLV shows he received care as a non-service-connected Veteran from 2002 – 2004 and has no diagnosed mental health conditions. 
    o.  There is no probative evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations.   
    p.  It is the opinion of the ARBA medical advisor that neither a discharge upgrade nor a referral of his case to the DES remain unwarranted. 
 
BOARD DISCUSSION: 
 
1.  The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 
 
2.  After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests.  
 
 a.  The evidence shows the applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge (extensive AWOL from 25 August 1970 to 7 December 1970 and 22 January 1971 to 22 September 1971). After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and carry an under other than honorable conditions characterization of service. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 
 
 b.  The Board also noted that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing. However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing. The Board reviewed and concurred with the medical advisory official’s finding no probative evidence the applicant had a mental health or other medical condition which would have then contributed to or would now mitigate his multiple UCMJ violations. The Board determined that neither a 
discharge upgrade nor a referral of his case to the Disability Evaluation System is  unwarranted. 
 
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 for correction of the records of the individual concerned. 
 
  9/19/2023

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.  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.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. 
 
 a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 
 
 b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 
 
3.  AR 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of this regulation provides, in part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. 
 
 a.  Paragraph 3-7a(1) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. 
 
 b.  Paragraph 3-7b(1) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
 c.  Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. 
 
4.  Title 10, U.S. Code, section 1201 provides for the physical disability retirement of a member who has either 20 years of service or a disability rating of 30% or greater. 
 
5.  Title 10, U.S. Code, section 1203 provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30%. 
 
6.  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. 
 
7.  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. 
 
8.  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. 
 
9.  Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 
 
 a.  Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. 
 
 b.  The disability evaluation assessment process involves two distinct stages, the MEB and physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his or her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition.  Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service.  Individuals who are "separated" receive a 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 medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 
 
 d.  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. 
 
 e.  Paragraph 3-4 states Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: 
 
  (1)  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. 
 
  (2)  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 
 
 
10.  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.   
 
11.  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. 
 
12.  Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 
 
//NOTHING FOLLOWS//