IN THE CASE OF: BOARD DATE: 15 November 2023 DOCKET NUMBER: AR20230006198 APPLICANT REQUESTS: in effect, a medical disability separation with an honorable characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement, 15 March 2023 * self-authored statement, undated * online news article, "6 Fort Benning soldiers still in treatment after wreck that injured 40," 8 March 2015 * DA Form 3975 (Military Police Report), 10 March 2015 * Physical profile, 21 March 2015 * Memorandum for Record (MFR), Requesting DD Form 2697 (Medical Assessment), 1 May 2015 * Memorandum, Subject: Separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 (Other Designated Physical or Mental Conditions), 27 May 2015 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 30 June 2015 * Department of Veterans Affairs (VA) rating decision, 20 July 2018 * VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), page 8, undated * VA rating decision, 11 October 2018 * letter, VA, 25 June 2020 FACTS: 1. The applicant notes his request is related to post-traumatic stress disorder (PTSD) and a traumatic brain injury (TBI), and states, in effect, he feels his character of service should be changed from uncharacterized to honorable. He would also like this Board to look at this investigation and decide whether he and other soldiers deserve to be chaptered out of the Army because of a fraudulent reason to cover up for a Drill Sergeant and chain of command who was negligent with the safety of their troops. a. One Sunday, while he was assigned to Fort Benning, GA for basic combat training, he decided to go to Church with his battle buddy. After church, a drill sergeant arrived with a truck to pick up the trainees; there were approximately 70 trainees waiting for a ride back to the barracks. The drill sergeant instructed every Soldier to get into the back of the truck; they were packed in like sardines. b. While riding down the street, the truck was swaying side to side. The truck was making a right turn when it flipped over. The top part of the truck fell down and hit the trainees on their heads as the truck tilted over and they fell out of the truck going downhill. The applicant felt his life flash before him. c. When he opened his eyes, everyone was on the ground. Some people were trapped under the truck. There was blood everywhere. Several trainees were bleeding from the mouth, and his battle buddies' finger was on the ground next to him. Another trainee had his face crushed from everyone falling onto him. The applicant's battle buddy was unconscious; he was evacuated by helicopter to a medical facility. d. The applicant's head was smashed by something from the top of the truck and other trainees were piling on top of him, so he could not breathe. He was laying on his left side, his shoulder was in severe pain and his foot was twisted, he could not move his foot or his shoulder because it felt like they were going to fall off of his body. He blanked out and then woke up. His left tendon snapped, and his chest felt like he had stones on it for hours. When he found out he had been in a freak accident and that many of the trainees were greatly injured, his excitement, hope, motivation, and the will to carry on was extinguished. e. He was put on a different pain medication by the doctor and was told to return to training. He could not believe they wanted the trainees to return to training and go back to duty so soon and without the proper care. After all that happened, he felt he could not continue training when his migraine headaches would not let him see 20 feet ahead; especially after losing so many comrades in training. f. He was tearful and depressed about accident because he was young and had just experienced a terrible tragedy. The drill sergeants were harassing him and the other trainees, telling them they were weak. The rest of his time in basic training, the only thing he could hear from the drill sergeants was how he was so weak. He does not understand how the drill sergeants could call the trainees weak after some of them almost lost their lives, and after they lost some of their battle buddies in a non-combat situation because of the negligence of a drill sergeant. g. Even when he was hurt and, on a profile, he still tried to train while injured, he still gave it all he had. He does not see anything nothing un-characterizing about being injured in the line of duty. He tried to get over the trauma, but he still has visions of the truck incident three years later; more dreams than ever. 2. The applicant enlisted in the regular Army on 10 February 2015, and was assigned to Fort Benning, GA for basic combat training. 3. An online news article, titled, "6 Fort Benning soldiers still in treatment after wreck that injured 40," states: Original: Approximately 70 soldiers assigned to Basic Combat Training were involved in a one-vehicle accident while returning from church services on [8 March 2015]... according to a Fort Benning report... Update: As of Tuesday morning [10 March 2015], two soldiers were still being treated at .[a Medical center]... On Sunday, 10 were transported to the hospital. Seven have been discharged while one patient was sent to [another facility] ... 4. A Military Police Report, dated 10 March 2015, shows: a. The operator of "Vehicle 1" overloaded the vehicle with 82 Soldiers and was attempting to make a left turn, causing "Vehicle 1" to overturn. The vehicle sustained disabling damages. Fort Benning Emergency Medical Services (EMS) and Fire Department were dispatched and responded to the scene. (1) Fort Benning EMS transported 12 Soldiers to Midtown Medical Center and 42 Soldiers, including the applicant, to the Martin Army Community Hospital. The hospital reported the applicant's injuries as: neck, head, and arm pain. Additionally, 29 Soldiers remained on the scene with no visible injuries. (2) The driver/Drill Sergeant was charged with reckless endangerment on post. b. This report lists the applicant as a victim and notes he suffered from minor injuries. 5. A Fort Benning Initial Entry Training Physical Profile, dated 21 March 2015, shows the applicant was seen at a follow-up appointment after the motor vehicle accident. The profile, which was valid through 27 March 2015, shows: a. Functional Activities: The applicant was not to wear Interceptor Body Army, but he could wear the armor for qualification, that day only. b. Remarks: No upper body training for strained upper back muscles and continued swelling. Left hamstring strain. No running or jumping. Medical issues aside, the applicant expresses no desires to continue training. No motivation. 6. A report of Mental Status Evaluation, dated 23 April 2015, shows the applicant received an evaluation and was found unfit for duty due to a personality disorder or other mental condition that did not amount to a medical disability. Additionally, he was screened for PTSD and TBI and these conditions were either not present or were not considered unfitting. This evaluation also notes: a. He could understand and participate in proceedings, and he met medical retention standards and did not require or qualify for a medical evaluation Board (MEB). b. He was diagnosed with adjustment disorder with depressed mood. The health care provider opined that the applicant would not respond to rehabilitative efforts. c. The applicant was seen at a medical facility because "he no longer wants to be in the military." He attributes his problems to the military environment and reports experiencing the following emotional symptoms: low mood, tearfulness, and feelings of hopelessness. Because the applicant lacked intrinsic motivation to improve and exhibited persistent resistance to both unit and/or medical interventions to implement the same, he will continue to experience impairing difficulties if he remains on active duty. He was screened for PTSD, TBI, substance abuse disorder, depression, and sexual assault that occurred in the military and screened negative for all the aforementioned conditions. The applicant had a qualifying diagnosis that was severe enough to interfere with his functioning in the military. Attempts to rehabilitate the applicant via supportive and group therapy have failed. d. Occupational issues resulting from the applicant's condition included: failure to complete basic training requirements, as well as an overall poor performance in the following areas: interest in the Army, attention to training, motivation to serve, military bearing, response to noncommissioned officers. And ability to follow instructions. The applicant's command evaluated his ability to be successful in the Army as "poor." 7. The applicant's drill sergeant rendered near duplicate counseling on 23 and 24 April 2015. The purpose of the counseling was the applicant's failure to complete training due to his mental state and his diagnosis of adjustment disorder with depressed mood. The applicant was informed he had received many opportunities to overcome his deficiencies, but he had been unable to get back into a better state of mind and perform his duties. Further, if the behavior continued, he would be recommended for separation from the Army. 8. On 30 April 2015, the applicant's drill sergeant rendered counseling to inform the applicant he was being recommended for separation under the provisions of Army Regulation 635-200, paragraph 5-17. 9. A report of medical assessment, dated 6 May 2015 shows/states the applicant was diagnosed with adjustment disorder with depressed mood, but he did not have any other concerns or questions about his health. The medical provider notes the applicant had been seen at the Troop Medical Center and the emergency room after a troop transport rollover where he injured his left elbow, shoulder, neck, and knee area. After physical therapy he was released back to full duty. He briefly had headaches and trapezius pain. He has been experiencing no physical problems. He has multiple visits with Community Mental Health Services (CMHS) for adjustment disorder with depressed mood; CMHS is recommending separation under Army Regulation 635-200, paragraph 5-17 because of the severity of his symptoms. 10. His company commander rendered counseling to inform the applicant he was recommended for an entry level separation (ELS) under the provisions of Army Regulation 635-200, paragraph 5-17 because of his diagnosis of adjustment disorder with depressed mood. The recommendation was based on a behavioral health evaluation, the applicant's lack of motivation, and failing to meet gate objectives for phases I and II of basic combat training. 11. On 27 May 2015, the applicant's company commander notified him he was initiating action to separate the applicant under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions based on the applicant's diagnosis of adjustment disorder with depressed mood. The applicant's condition precluded him from further military service and separation was in the best interest of the applicant and the Army. a. The company commander recommended the applicant's service be characterized as uncharacterized. b. The applicant's commander informed him of his rights, which included the right to submit a statement and to consult. c. The applicant acknowledged receipt of the commander's notification the same day. 12. The applicant consulted with legal counsel on 27 May 2015, and acknowledge he was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions; of the rights available to him; and of the effects of any action taking by him in waiving his rights. He elected not to submit a statement and he waived consulting counsel. 13. On 27 May 2015, the applicant's company commander formally recommended the applicant's separation under the provisions of Army Regulation 635-200, paragraph 5-17, with an uncharacterized/entry level separation. 14. On 2 June 2015, the installation legal office provided a legal review of the applicant's separation packet and found it was legally sufficient and that all procedural requirements were met. 15. On 12 June 2015, the applicant's intermediate commander recommended approval of the applicant's separation with an uncharacterized entry level separation. 16. On 15 June 2015, the approval authority directed the applicant's discharge from military service with and entry level separation and that his service be uncharacterized. 17. The applicant's DD Form 214 shows he was discharged on 30 June 2015, under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of condition, not a disability. He completed 4 months and 21 days of net active service. His DD Form 214 shows: * he was not awarded a military occupational specialty * his service characterization was uncharacterized * his separation code was JFV * his reentry code was 3 18. The applicant provides a/an: a. a VA rating decision, dated 20 July 2018 shows: (1) 20 July 2018 - the VA granted service connection for - (a) other specified trauma and stressor related disorder to include schizophrenia to include TBI, claimed as PTSD, and head injury (related to PTSD-Noncombat) with an evaluation of 100 percent. (b) migraine headaches (claimed as headaches (related to PTSD-Non-Combat) was granted with an evaluation of 50 percent. (2) A finding of incompetency was proposed. (3) the following additional conditions were considered: * neck condition (claimed as neck sprain (related to PTSD-Non-Combat)) - denied * back condition (claimed as back injury (related to PTSD-Non-Combat)) - deferred * left arm condition (claimed as arm condition left (related to PTSD-Non- Combat)) - deferred * left leg condition (claimed as leg condition left (related to PTSD-Non- Combat)) - deferred * right arm condition (claimed as arm condition right (related to PTSD-Non- Combat)) - deferred b. 11 October 2018 - the VA initially deferred but later denied service compensation for the following conditions noted as being related to PTSD-Non-combat - * back condition * left arm shoulder strain * left leg condition * right are shoulder strain c. undated VA Form 21-526, page 8 only, which lists the following conditions, claimed by the applicant: * head injury * arm condition left * arm condition right * neck sprain * major depression * back injury * leg injury left * headache * PTSD d. A VA summary of benefits letter dated 25 July 2020 shows the VA considered the applicant to have been separated with an under honorable conditions character of service for VA purposes. He had one or more service-connected disabilities, and he his combined service-connected evaluation was 100 percent. Additionally, the VA considered him to be totally and permanently disabled due to his service-connected disabilities effective 11 June 2018. 19. On 4 August 2022, in AR20210002870, the Army Discharge Review Board considered the but ultimately denied the applicant request to change his characterization of service from uncharacterized to honorable. The Board determined he was properly and equitably discharged. 20. MEDICAL REVIEW: a. Background: The applicant is requesting a medical disability separation with an honorable characterization of service. The applicant asserts PTSD and TIB are mitigating factors in his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory: * The applicant enlisted in the Regular Army on 10 February 2015. * Per a military police report dated 10 March 2015, on 8 March 2015 the applicant was in a moving vehicle accident (MVA) with 82 other soldiers. The applicant had neck, head and arm pain. * The applicant was on a temporary profile, dated 21 March 2015, with some restrictions due to injuries. However, the profile also noted the applicant had no desire to continue with training and had no motivation. His separation physical notes after physical therapy he was released back to full duty and was experiencing no physical symptoms. * On 23 April 2015 he was seen for a mental status exam/chapter 5-17 exam. * On 27 May 2015 the applicant's company commander notified him he was initiating action to separate the applicant under AR 635-200, paragraph 5-17, for other designated physical or mental conditions based on the applicant's diagnosis of adjustment disorder with depressed mood. His discharge was approved. * The applicant was discharged on 30 June 2015 with an uncharacterized characterization of service. * ADRB denied his request for upgrade on 4 August 2022. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), his DD Form 214, documents from his service record and separation, as well as, a self-authored statement (and update), online news article, MFRs, military police report, Department of VA rating decision letters, and other VA forms. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant asserts that PTSD and TBI mitigate his discharge and that he should receive an upgrade from uncharacterized to honorable, as well as a medical disability discharge. He asserts that he experienced a moving vehicle accident that caused these conditions, and also asserts there should be an investigation into a cover up. Please see his supporting documents for further details on his accident and assertions. This advisor will focus only on the mental health component of this case. e. The applicant’s electronic health records from his time in service show that he was diagnosed with an adjustment disorder with depressed mood (30 April 2015) and adjustment disorder with disturbance of emotions and conduct (6 May 2015). He was first seen by behavioral health on 18 February 2015 (prior to the accident) for what appears to be a command directed evaluation, however minimal information was known about the presenting concern, and it was recommended the evaluation be rescheduled. The applicant was seen again on 19 February 2015. The assessing provider was able to meet with the 1SG who reported the following concerns: “patient seems slow to respond to directives, sometimes seems confused, needs frequent redirection.” No diagnosis was given during this assessment. He was seen again on 27 March 2015, reporting distress and anger about the accident, and desire to get out of the military. He also continued to report symptoms consistent with his leadership’s observation, and symptoms that predated his accident (i.e., zoning out, being slow to respond). This is when he was first diagnosed with an adjustment disorder. The applicant was seen an additional 7 times, to include for a mental status exam/his 5-17 evaluation, individual and group therapy. The theme throughout was that he was feeling like he had no motivation and was not “fast enough” for the military, meaning that he was unable to process directives and instructions at the speed that was expected. While the applicant is asserting his accident and injuries mitigated these concerns and his discharge, the record reflects that some of his symptoms were present before his accident and command was already concerned (hence the referral to mental health). Of note, the applicant was released without limitations during his mental health encounters and was consistently marked as having a good or excellent prognosis. f. He was seen for his 5-17 evaluation on 23 April 2015. He did screen positive for symptoms of trauma and a TBI event, but they were not found to meet AR 40-501 criteria for a med board. He overall described wanting to be out of the service. Results show that he was found “unfit for duty due to personality disorder or other mental condition that does not amount to a medical disability,” with a diagnosis given of adjustment disorder with depressed mood. In addition, it was found that he could understand and participate in the administrative proceedings, could appreciate the difference between right and wrong, and met medical retention requirements. When he was seen for his 5-17 physical exam on 6 May 2015, his injuries from the rollover were discussed with the doctor noting that all conditions had resolved. g. His EHR post discharge shows the applicant engaged with the VA starting in 2018 and has consistently engaged with mental health care since. Per his VA EHR, he has been diagnosed with major depressive disorder – single episode – unspecified (MDD), PTSD, and nonpsychotic mental disorder – unspecified. He has engaged in medication management, therapy and caregiver program. The applicant had a compensation and pension evaluation 13 July 2018. He was not found to meet criteria for PTSD but was diagnosed with schizophrenia and other specified trauma and stressor related disorder, with both conditions consider, more likely than not – service connected. The applicant is 100% service connected, to include 100% for neurosis per his EHR or for “other specified trauma and stressor related disorder and schizophrenia to include traumatic brain injury (TBI) (claimed as PTSD, major depression related to PTSD-noncombat)” per his VA decision rating letter from 2018. Through review of Joint Legacy Viewing, this applicant did have “Community Health Summaries and Documents” available, though there was no record of a mental health diagnoses, nor mental health records. h. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is evidence of a potentially mitigating experience during his time in service and that he has since been service connected for a potentially mitigating mental health condition. However, the applicant has no misconduct to mitigate. In addition, there is insufficient evidence that his case should be referred to the DES process for review. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. Applicant asserts PTSD and TBI. (2) Did the condition exist or experience occur during military service? Yes, the applicant asserts mitigating conditions and experiences while in the service. He is also 100% service connected for neurosis/” other specified trauma and stressor related disorder and schizophrenia to include traumatic brain injury (TBI).” (3) Does the condition or experience actually excuse or mitigate the discharge? Not applicable, no known misconduct. The applicant asserts that PTSD and TBI are mitigating factors in his discharge. There are numerous points to this opine. First, there is evidence of a potentially mitigating experience (the MVA) as well as service- connected mental health conditions that were later diagnosed (only adjustment disorder was present during his time in service). Second, uncharacterized discharges are not punitive or negative. Third, there does not appear to be any misconduct that needs to be mitigated. However, given his traumatic experience and mitigating condition, an upgrade could be considered. Fourth, there is insufficient evidence to support a referral to IDES process for a mental health condition at this time. The burden of proof is on the applicant to provide contemporaneous evidence that he should have been medically retired or discharged during his time in service. There is insufficient evidence that he was diagnosed with a med boardable condition while he was in the service, that he was ever issued a permanent profile, that he did not meet medical fitness standards in accordance with AR 40-501 during his period of service, or that he was at the medical readiness decision point. The applicant has since been service connected (100%) for neurosis. However, VA examinations are based on different standards and parameters; they do not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. Therefore, a post-discharge diagnosis of PTSD/other trauma and stressor related disorder and a VA disability rating does not imply failure to meet Army retention standards at the time of service, nor is it indicative of an injustice at the time of service. Furthermore, even an in-service mental health diagnosis is not automatically unfitting per AR 40-501 and would not automatically result in medical separation processing. In summary, his separation process appears proper, equitable and free of error. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's 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 medical review, the Board concurred with the advising official finding considered the advising official findings insufficient evidence to support a referral to IDES process for a mental health condition at this time. The Board considered the advising opine determination that there is evidence of a potentially mitigating experience (the MVA) as well as service-connected mental health conditions that were later diagnosed (only adjustment disorder was present during his time in service). The Board recognize there is evidence of a potentially mitigating experience during his time in service and that he has since been service connected for a potentially mitigating mental health condition. 2. However, the Board agreed the applicant has no misconduct to mitigate. Further, the Board noted the applicant completed 4 months and 21 days of net active service. obligation and did not complete training and was released by reason of condition, not a disability. An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. As a result, there is no basis for granting the applicant's request for upgrade of his uncharacterized character of service or referral of his case to the DES. Therefore, the Board denied relief. 3. The Board noted that referral to the IDES occurs when a Soldier has one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. The DES compensates an individual only 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. 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. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Paragraph 3-4(2) Entry-Level status. Service will be uncharacterized, and so indicated in block 24 of DD Form 214, except as provided in paragraph 3–9a. b. Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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. c. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Paragraph 3-9a Entry-level status separation. A separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in entry-level status, except when— (1) Characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. (2) HQDA on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. This characterization is authorized when the Soldier is separated by reason of selected changes in service obligation, convenience of the Government, and Secretarial plenary authority. (3) The Soldier has less than 181 days of continuous active military service, has completed Initial Entry Training, has been awarded an MOS, and has reported for duty at a follow-on unit of assignment. e. Paragraph 5-17 (Other designated physical or mental conditions) states, commanders who are general court-martial convening authorities (GCMCA) and their superior commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability. Such conditions may include but are not limited to other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired. (1) The condition of the personality disorder is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier’s ability to perform duty. (exceptions: combat exhaustion and other acute situational maladjustments.) The diagnosis of personality disorder must have been established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials who is privileged to conduct mental health evaluation for the DOD components. (2) When a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. (3) Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded many opportunities to overcome those deficiencies as reflected in appropriate counseling or personnel records. f. Section II (Terms): (1) Character of service for administrative separation - A determination reflecting a Soldier’s military behavior and performance of duty during a specific period of service. The three characterizations are honorable, general (under honorable conditions), and under other than honorable conditions. The service of Soldiers in entry-level status is normally described as uncharacterized. (2) For Regular Army Soldiers, entry-level status is the first 180 days of continuous AD or the first 180 days of continuous AD following a break of more than 92 days of active military service. 2. Army Regulation 40-501 (Standards of Medical Fitness) provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) 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 or her office, grade, rank, or rating. It provides that an MEB is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. 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 service. a. Paragraph 2-1 provides that the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 4-10 provides that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in Army Regulation 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. e. Paragraph 4-12 provides that each case is first considered by an informal PEB. Informal procedures reduce the overall time required to process a case through the disability evaluation system. An informal board must ensure that each case considered is complete and correct. All evidence in the case file must be closely examined and additional evidence obtained, if required. 4. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10 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 of less than 30 percent. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for medical conditions incurred in or aggravated by active military service. The VA, however, is not empowered by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual may have a medical condition that is not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, but that same condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 6. Section 1556 of Title 10, United States 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230006198 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1