IN THE CASE OF: BOARD DATE: 20 December 2023 DOCKET NUMBER: AR20230005314 APPLICANT REQUESTS: in effect: * correction of Orders 133-0005 to show yes vice no for the following administrative determinations: * Disability is based on injury or disease received in the line of duty 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 * Disability resulted from a combat related injury as defined in 26 USC 104 * a personal appearance before the board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders 133-0005 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veteran Affairs (VA) overall rating letter FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he needs to correct his medical retirement order to reflect that he has injuries that are in the line of duty. On the last page of his orders, it has two questions. "Disability is based on injury or disease received in the line of duty 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: (No) to (Yes). Disability resulted from a combat related injury as defined in 26 USC 104: (No) to (Yes). He is 100 percent Permeant and Total Disabled. His records should be enough evidence. But if more information is needed, he can appear via telephone or video. 3. The applicant enlisted Regular Army on 1 September 1992. He remained on active duty through a series of reenlistments. 4. The applicant was deployed to Iraq from 26 February 2003 to 5 July 2003 and 1 April 2008 to 27 May 2009. He was deployed to Kuwait from 11 October 2010 to 7 February 2011 and 2 February 2012 to 20 May 2012. 5. A DA Form 199 shows: a. An Informal PEB convened on 6 March 2015, wherein the applicant was found physically unfit with a recommended rating of 80 percent and that his disposition be permanent disability retirement. b. The applicant was found unfit for: (1) C4-5 and C5-6 degenerative disc disease, osteophytic disease and cervical myofascial pain syndrome. Onset in 2010 while stationed in Germany, without specific injury, and associated with degenerative changes and not responding to conservative treatment now requires significant duty limitations; 30 percent. (2) Right upper extremity, ulnar tunnel syndrome and upper cervical radiculopathy. See disability 1; 30 percent. (3) Left upper extremity, ulnar tunnel syndrome and upper cervical radiculopathy. See disability 1; 20 percent. (4) Right shoulder rotator cuff tendinopathy, impingement, and bursitis. Onset while stationed Continental United States (CONUS), due to lifting a heavy duffle bag, underwent arthroscopic surgery in 2014, but has not been able to return to all activities; 20 percent. (5) Right hip labral tear with impingement, iliotibial band friction, and bursitis (Impairment of the thigh). Onset in 2013 while stationed at Shaw Air Force Base, without specific injury, not responding to conservative treatment now requires significant duty limitations; 10 percent. (6) Right hip labral tear with impingement, iliotibial band friction (limitation of extension). See disability 5; 0 percent. (7) Right hip labral tear with impingement, iliotibial band friction, and bursitis (limitation of flexion). See disability 5; 0 percent. c. The following conditions are not unfitting and meet retention standards: * gastroesophageal reflux disease (GERD) * chronic sinusitis * scars – right shoulder, head, face, right knee * pseudofolliculitis barbae * chronic constipation * ganglion cyst – 5th finger, left hand * bilateral medial epicondylitis * bilateral ulnar tunnel syndrome * left iliotibial (IT) band friction syndrome * left hip bursitis * bilateral knee osteoarthrosis * bilateral ankle sprain and instability * bilateral pes planus * bilateral metatarsalgia * bilateral hallux valgus * bilateral plantar fasciitis * thoracolumbar myositis * thoracolumbar myofascial pain syndrome * mild bilateral sacroiliitis * lumbar intervertebral disc syndrome (IVDS) bilateral sciatic nerve * erectile dysfunction * hemorrhoids * migraine headaches * tension headaches * bilateral ulnar tunnel syndrome * tinnitus * borderline glaucoma * temporomandibular joint (TMJ) capsulitis * bruxism * other specified trauma/stress related disorder (PTSD in remission) diagnosed by the military treatment facility (MTF) as anxiety disorder, not otherwise specified (NOS) * left shoulder rotator cuff tendinopathy. d. 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. (This determination is made for all compensable cases but pertains to potential benefits for disability retirees employed under Federal Civil Service). (2) Evidence of record reflects the individual was not 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. e. This case was adjudicated as part of the Integrated Disability Evaluation System (IDES). f. As documented in the Department of Veterans Affairs (DVA) memorandum dated 3 March 2015, DVA determined the specific VASRD codes to describe the Soldier’s conditions. The PEB determined the disposition recommendation based on the proposed DVA disability ratings and in accord with applicable statues and regulations. g. The applicant concurred and waived a formal hearing of his case on 17 March 2015. He did not request reconsideration of his VA ratings. f. The proceedings were finalized on 26 March 2015. 6. Orders 133-0005, issued by Directorate of Human Resources, Schofield Barrack, HI on 13 May 2015, shows the applicant was reassigned for separation processing effective 27 May 2015. Part 2 of the orders show his effective date of retirement as 10 September 2015 for permanent disability with a rating of 80 percent. It shows the following statements: * Disability is based on injury or disease received in the line of duty 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: No * Disability resulted from a combat related injury as defined in 26 USC 104: No 7. The applicant was honorably retired on 10 September 2015 for disability, permanent (enhanced). His DD Form 214 shows his separation code as SEJ and reentry code as 4. He was credited 23 years and 10 days net active service this period. 8. The applicant applied for Combat-Related Special Compensation (CRSC) on 29 October 2015. A CRSC decision letter (Claim # 333380), shows the applicant was notified on 26 May 2016, his claimed disabilities were found not combat-related. 9. The ABCMR requested an advisory opinion from the US Army Physical Disability Agency (USAPDA) on 4 August 2023. The USAPDA provided the following response: a. Background: The applicant was found to be unfit for the following conditions: neck; bilateral upper extremity radiculopathy; right shoulder; and right hip conditions on 6 March 2015. The Informal Physical Evaluation Board (IPEB) also considered his PTSD condition and found it to be fitting. On 17 March 2015, the applicant reviewed and accepted his IPEB findings. Thus, he waived his right to demand a Formal Physical Evaluation Board (FPEB). The applicant served over 23 years on active federal service (AFS). The applicant 's PTSD was service connected by the VA. The applicant's final disposition was medical retirement with a combined overall rating of 80 percent for his unfitting conditions. b. Analysis: The VA applies its own policies and regulations to make service connection and rating determinations. It is not bound by determinations made by the Army. Likewise, following its own policies and regulations, the Army makes its own determinations with respect to conditions that meet or fail retention standards and/or are fit or unfit. However, unlike the VA, the Army's determination of fitness and its application of ratings is a snapshot in time whereas the VA can make service connection and rating determinations throughout a veteran's life. As noted above, the applicant served over 23 years of AFS. Thus, his PTSD condition was service connected. However, the threshold issue in this matter is whether the PTSD condition as it existed at the time of retirement, on 10 September 2015, was unfitting or fitting. The applicant puts forward no evidence that the condition was incorrectly found to be fit at the time of his retirement. Since the condition was found to be fit, combat codes cannot be awarded for a fit condition. c. Conclusion: A review of the case has not demonstrated any error by the IPEB determining that the applicant's PTSD condition was fitting at the time of his retirement. Thus, a combat code is not warranted. Therefore, the matter is legally insufficient. 10. A copy of the advisory opinion was sent to the applicant on 6 September 2023 for his review and comment. No response was received. 11. Based on the applicant's contention the Army Review Boards Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. 12. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 13. 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. 14. 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. 15. 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. 16. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting reversal of the United States Army Physical Disability Agency’s administrative determination that none of his five military disabilities was not related to combat as defined by law: “I need to correct my medical retirement order to reflect that I have injuries that are in the line of duty. On the last page of my orders, it has two questions: "Disability is based on injury or disease received in the line of duty 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: (No) to (Yes) Disability resulted from a combat related injury as defined in 26 USC 104: (No) to (Yes). I am 100% Permanent and Total Disabled. l want to request an amendment to my Medical retirement orders. I want to re- open the case to show that I have disabilities based on injury in the line of duty 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. Disabilities resulted from a combat related injury as defined in 26 USC 104. PTSD.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. The applicant’s DD 214 for the period of Service under consideration shows he entered the Regular Army on 1 September 1992 and was permanently retired for physical disability on 10 September 2015 under provisions provided in chapter 4 of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012). d. Orders published 15 May 2015 by the Directorate of Human Resources, United States Army Garrison-Hawaii he was permanently retired for physical disability with an 80% military disability rating effective 18 November 2015 under provisions provided in chapter 4 of AR 635–40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012). It shows none of his disabilities had been determined combat related. e. A Soldier is referred to the IDES when they have one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. At the start of their IDES processing, a physician lists the Soldier’s referred medical conditions in section I the VA/DOD Joint Disability Evaluation Board Claim (VA Form 21-0819). The Soldier, with the assistance of the VA military service coordinator, lists all conditions they believe to be service-connected disabilities in block 8 of section II or a separate Statement in Support of Claim (VA form 21-4138). f. Soldiers then receive one set of VA C&P examinations called Disability Benefits Questionnaires (DBQs) covering all their referred and claimed conditions. These examinations, which are the examinations of record for the IDES, serve as the basis for both their military and VA disability processing. All conditions are then rated by the VA prior to the Soldier’s discharge. The physical evaluation board (PEB), after adjudicating the case sent them by the medical evaluation board (MEB), applies the applicable VA derived ratings to the Soldier’s unfitting condition(s), thereby determining their final combined rating and disposition. Upon discharge, the Veteran immediately begins receiving the full disability benefits to which they are entitled from both their Service and the VA. g. On 24 November 2014, the applicant was referred to “1) Neck: Cervical spine spondylosis and degenerative disc disease with disc bulges. 2) Right Shoulder status post arthroscopy with arthroscopic rotator cuff repair and subacromial decompression (17APR2014) with painful surgical residuals. 3) Right Hip labral injury and bursitis.” h. While the document with his additional is not available for review, he claimed numerous conditions including one mental health condition. The MEB determined the applicant had 9 conditions which failed medical retention standards: 1. C4-C5 and C5-C6 degenerative disc disease additionally diagnosed by the VA as IVDS upper radicular group bilateral and cervical myositis. 2. C4-C5 osteophytic disease. 3. Cervical myofascial pain syndrome. 4. Right hip labral tear and avulsion trauma with impingement. 5. Right IT [iliotibial] band friction syndrome. 6. Right hip bursitis. 7. Right shoulder rotator cuff tendinopathy s/p repair. 8. Right shoulder impingement. 9. Right shoulder subdeltoid bursitis. i. The MEB determined 32 additional conditions met retention standards, including “Other specified trauma / stress related disorder (PTSD in remission).” This condition as documented in his MEB Narrative Summary: “Other specified trauma / stress related disorder (PTSD in remission) (VA diagnosis; diagnosed by the MTF as “anxiety disorder NOS”) ? Meets retention standards: The SM’s [Service Member] psychiatric condition, regardless of diagnosis, does not cause him to fail medical retention standards as defined by AR 40?501, Chapter 3. His condition has never resulted in recurrent or extended hospitalization, does not interfere with effective performance of military duty and does not require limitations of duty or duty restricted to protected environments (treatment record, e?profile and DA Form 7652 reviewed). In addition, there is no evidence that the SM’s condition, alone or in combination with other conditions, interferes with satisfactory performance of duty as substantiated by the SM’s commander or supervisor or supported by the presence of DA Form 3349, Block 5 restrictions. There is no evidence that the SM’s health or well?being would be compromised if he remained in military service with his psychiatric condition. There is no indication that, if the SM remained in the military, his condition would prejudice the best interests of the US Government. The MTF and VA evaluations are consistent in assessment of the SM’s level of social and occupational functioning. The VA BH examiner states that the SM’s symptoms are “mild” and “transient” resulting in social?occupational impairment only during periods of significant stress. MTF BH providers (Drs S. and B., psychology) state that the SM “meets retention standards IAW AR 40?501 and IS cleared for deployment from psychological standpoint” (07 Jan 2015).” j. On 10 February 2015, the applicant agreed with the MEB’s findings and recommendation, and his case was forwarded to a physical evaluation board (PEB) for adjudication. k. The applicant’s Informal Physical Evaluation Board (PEB) Proceedings (DA Form 199) dated 6 March 2015 show the board determined all the conditions which had failed medical retention standards were also unfitting conditions for continued military service. The PEB made the administrative determination that none of the disabilities was not combat related: They found no evidence that one of these disabilities was the direct result of armed combat; was related to the use of combat devices (instrumentalities of war); the result of combat training; incurred while performing extra hazardous service though not engaged in combat; incurred while performing activities or training in preparation for armed conflict in conditions simulating war; or that he was a member of the military on or before 24 September 1975. l. The onset of these conditions as noted in the MEB narrative summary and written in the disability rationales on his DA 199: C4-5 and C5-6 degenerative disc disease, osteophytic disease and cervical myofascial pain syndrome; Right upper extremity, ulnar tunnel syndrome and upper cervical radiculopathy; and Left Right upper extremity, ulnar tunnel syndrome and upper cervical radiculopathy: Onset in 2010 while stationed in Germany, without specific injury, associated with degenerative changes …” Right shoulder rotator cuff tendinopathy, impingement, and bursitis: “Onset in 2010 while stationed CONUS, due to lifting a heavy duffle bag …” Right hip labral tear with impingement, iliotibial band friction, and bursitis, (Impairment of the Thigh): “Onset in 2013 while stationed at Shaw AFB, without specific injury …” m. The PEB determined the remaining 32 conditions were not unfitting for continued service. They then applied the VA derived ratings for combined military disability rating of 80% and recommended the applicant be permanently retired for physical disability. On 17 March 2015, after being counseled on the PEB’s findings and recommendation by his PEB liaison officer, he concurred with the board’s findings, waived his right to a formal hearing, and declined to request a VA reconsideration of his disability ratings. n. Combat related is defined in Section b(3) of 26 U.S. Code §?104, and requires there be a direct cause and effect relationship: (3) Special rules for combat-related injuries: For purposes of this subsection, the term “combat-related injury” means personal injury or sickness— (A) which is incurred— (i) as a direct result of armed conflict, (ii) while engaged in extra-hazardous service, or (iii) under conditions simulating war; or (B) which is caused by an instrumentality of war. o. Review of the applicant’s DBQs shows the onset are somewhat different than those above but they are all still non-combat related. For his right shoulder, the applicant stated the “condition began during his operation in Iraq as he was working on vehicles and trucks.” He states the same for his cervical and related conditions. p. The applicant may believe these conditions should be found combat related because his work on military vehicles, which are instruments of war, should qualify his disabilities as combat related. However, because a Soldier was injured while in, on, around, or working on/with an instrumentality of war doesn’t automatically make it a disability caused by an instrumentality of war. The disability must be because the use or circumstances surrounding the injury is uniquely military and different from the use or occurrences in similar circumstances in civilian pursuits. Thus, an injury due to vehicle maintenance is not uniquely military or combat related. q. For his right hip: “The date of onset of the symptoms is 2009. The claimant states the above condition began during training and operation.” There is no specific injury noted and regular/repetitive training does not make a condition combat related. r. No substantiating medical documentation or command endorsements were submitted, nor are there any AHLTA encounters identified to support an affirmative combat related. s. As the applicant’s mental health condition was not an unfitting disability, a determination of combat related was neither required nor applicable. t. The applicant has applied for Combat Related Special Compensation (CRSC) for many of his unfitting and not unfitting VA service-connected disabilities. For each request, block 13j – “In your own words, describe the events surrounding the disability and how it meets the guidelines of combat related” – is blank. u. It is the opinion of the ARBA Medical Advisor there is insufficient probative evidence upon which to reverse the United States Army Physical Disability previous non-combat related determinations for his unfitting disabilities. 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 the medical review, the Board concurred with the advising official finding insufficient evidence upon which to reverse the United States Army Physical Disability previous non-combat related determinations for his unfitting disabilities. Based on the evidence in the applicant’s record, the Board found no evidence that the applicant’s condition, alone or in combination with other conditions, interferes with satisfactory performance of duty as substantiated by the applicant’s commander or supervisor or supported by the presence of DA Form 3349, Block 5 restrictions. Additionally, the Board saw no evidence that the applicant’s health or well?being would be compromised if he remained in military service with his psychiatric condition. 2. Furthermore, the Board determined the applicant concurred with the board’s findings, waived his right to a formal hearing, and declined to request a VA reconsideration of his disability ratings. The Board found based on regulatory guidance for CRSC which states occurrence during a period of war is not a requirement to qualify. If the disability was incurred during any period of service as a result of wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material, the criteria are met. Although the applicant believes his work on military vehicles, which are instruments of war, should qualify his disabilities as combat related. However, because a Soldier was injured while in, on, around, or working on/with an instrumentality of war doesn’t automatically make it a disability caused by an instrumentality of war. As such, an injury due to vehicle maintenance is not uniquely military or combat related. Based on the preponderance of evidence and the advising official opine, the Board determined that reversal of the United States Army Physical Disability previous non-combat related determinations for his unfitting disabilities is without merit. Therefore relief is denied. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, 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. 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. Appendix 5 (Administrative Determinations) to enclosure 3 of DODI 1332.18 (Disability Evaluation System) (DES), defines armed conflict and instrumentality of war as follows: a. Incurred in Combat with an Enemy of the United States: The disease or injury was incurred in the LOD in combat with an enemy of the United States. b. Armed Conflict: The disease or injury was incurred in the LOD as a direct result of armed conflict (see Glossary) in accordance with sections 3501 and 6303 of Reference (d). The fact that a Service member may have incurred a disability during a period of war, in an area of armed conflict, or while participating in combat operations is not sufficient to support this finding. There must be a definite causal relationship between the armed conflict and the resulting unfitting disability. c. Engaged in Hazardous Service: Such service includes, but is not limited to, aerial flight duty, parachute duty, demolition duty, experimental stress duty, and diving duty. d. Under Conditions Simulating War: In general, this covers disabilities resulting from military training, such as war games, practice alerts, tactical exercises, airborne operations, and leadership reaction courses; grenade and live fire weapons practice; bayonet training; hand-to-hand combat training; rappelling; and negotiation of combat confidence and obstacle courses. It does not include physical training activities, such as calisthenics and jogging or formation running and supervised sports. e. Caused by an Instrumentality of War: Occurrence during a period of war is not a requirement to qualify. If the disability was incurred during any period of service as a result of wounds caused by a military weapon, accidents involving a military combat vehicle, injury or sickness caused by fumes, gases, or explosion of military ordnance, vehicles, or material, the criteria are met. However, there must be a direct causal relationship between the instrumentality of war and the disability. For example, an injury resulting from a Service member falling on the deck of a ship while participating in a sports activity would not normally be considered an injury caused by an instrumentality of war (the ship) since the sports activity and not the ship caused the fall. The exception occurs if the operation of the ship caused the fall. 2. 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. 3. Title 10, USC, 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. 4. Title 38 USC, 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. 5. Title 38 USC, 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. 6. Army Regulation (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 that 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. 7. 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. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. 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. 8. 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. 9. Section 1556 of Title 10, USC, 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. 10. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 11. 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. 12. 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) AR20230005314 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1