IN THE CASE OF: BOARD DATE: 13 December 2023 DOCKET NUMBER: AR20230005930 APPLICANT REQUESTS: through Counsel, the following: * reconsideration of his prior request for physical disability retirement in lieu of physical disability separation with severance pay * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect his combat deployments * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel’s letter * Table of Contents * Exhibits List * Counsel’s Brief * 62 pages of documents as enumerated in Exhibits List, labeled Exhibits A - I FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110003932 on 13 October 2011. 2. Counsel states: a. The applicant is an honorably discharged Army veteran who served from 2002 to 2009. He served in Korea, Fort Lewis, and with the White House Communications Agency, earning a multitude of commendations in the process. Unfortunately, while stationed at Fort Lewis, the applicant began to experience severe back pain after going for a run. In response, he took the initiative and sought treatment for his back. However, despite his best efforts, the pain persisted as he transitioned from serving at Fort Lewis to the White House Communications Agency in January 2006. b. After enduring years of worsening back pain while continuing to serve, a Medical Evaluation Board (MEB) was convened on 9 July 2008, in order to assess the applicant’s ability to continue to serve due to his worsening back pain. The MEB recommended he go before a Physical Evaluation Board (PEB) due to his chronic low back pain. Dr. C____, the physician who examined the applicant, despite noting "mild degenerative disc desiccation and mild left paracentral disc bulge," left his diagnosis as "chronic low back pain, medically not acceptable." Dr. C____ further stipulated that surgery was not indicated, basing his findings primarily off of the range of motion (ROM) that the applicant displayed during his examination. No attempt was made to establish the root cause of his back pain, nor did he ever receive any further treatment or examination from Dr. C____ to address any changes in his condition. Utilizing Dr. C____'s examination, an informal PEB (IPEB) recommended the applicant be separated with severance pay, assigning him a 10 percent disability for his chronic low back pain. The applicant disputed the findings of the IPEB, and a formal PEB was convened on 26 August 2008. The PEB affirmed the findings of the IPEB, but adjusted the applicant’s disability rating for his back to 20 percent. In its description of the applicant’s disability, the PEB only evaluated him for chronic low back pain, basing its entire rating on his ROM. None of the applicant’s other medical conditions that were available in his service treatment records were discussed or included in his rating. c. On 12 September 2008, shortly after the PEB issued its decision, the applicant was examined by Dr. B___ M____ at Walter Reed Army Medical Center (WRAMC) and was formally diagnosed with a "degenerative disc at L5-S1 with a large posterior annular tear." Although the PEB found that the applicant was not a candidate for surgery, Dr. M____ came to a different conclusion, offering Intradiscal Electrothermo Therapy (IDET) as a treatment option for the pain caused by the applicant’s degenerative disc disease. The applicant chose to undergo an IDET procedure in November 2008. d. The applicant sought to have the PEB reconsider its findings in Iight of both his updated diagnosis and the apparent change in his circumstances now indicating surgical treatment. Despite multiple attempts, the PEB, refused to take any subsequent action to correct his rating, asserting that no new medical evidence was available. That decision was made despite the clear change in the applicant’s diagnosis, a fact that is further highlighted by the need to adjust his discharge date following his surgery. As a result of this failure to properly rate his conditions, the applicant was medically separated with a 20 percent disability rating on 14 April 2009. e. On 8 June 2009, after reviewing the applicant’s claim, less than 2 months after his discharge, the Department of Veterans Affairs (VA) rated the applicant at 20 percent for degenerative disc disease of the lumbar spine, 10 percent for gastroesophageal reflux disease (GERD), and 10 percent for cervical strain, for a combined rating of 40 percent. The evidence cited by the VA included the applicant’s service treatment records, MEB Proceedings, PEB Proceedings, and VA exams conducted prior to his discharge. In short, utilizing the same information that was, or should have been, available to the PEB, the VA immediately rated the applicant over 30 percent disabled, which would have qualified him for medical retirement had such a rating been made by the PEB. f. On 13 October 2011, the Army Board for Correction of Military Records (ABCMR) denied the applicant’s application to change his discharge from a medical separation to a medical retirement. In their decision, the ABCMR stated that "[t]here is no evidence of record and the applicant provides no evidence that shows his unfitting condition worsened sufficiently enough after July 2008 to have met the criteria for a higher rating." The ABCMR also noted the applicant underwent the IDET procedure on 7 November 2008, and that he provided a health record from 12 September 2008, which revealed his degenerative disc disease at L5-S1 with a large posterior annular tear. g. The applicant now appeals the PEB rating decision and request that the ABCMR reconsider his case on the basis of error for failure to evaluate all unfitting conditions he experienced at the time of discharge. He did not discover the ability to appeal this decision until he sought legal counsel with the Rocky Mountain Veterans Advocacy Project (RMVAP), and in the interest of justice he therefore falls within the window for review. Additionally, as the applicant is presenting evidence not previously presented to the Board, his request for reconsideration should be granted. h. The PEB erred by failing to review the applicant’s updated diagnosis and improperly asserted that no new evidence existed when substantial new evidence did exist before the disposition of the case by the PEB. The PEB also erred by failing to consider all of the applicant’s medical conditions when rating his unfitting conditions upon discharge despite their documentation. The applicant was also denied a full and impartial review of his case by the US Army Physical Disability Agency (USAPDA), as the President of his PEB was the deputy commander of the USAPDA office, which reviewed his PEB, clearly leading to a conflict of interests. Had such errors not been made, he would have been medically retired with a disability rating of at least 30 percent. i. The ABCMR failed to properly evaluate all the evidence within the applicant’s record, giving far too much credence to the PEB's assertion that all evidence was considered when it is evident that the PEB did not consider his updated diagnosis and GERD in relation to his prior rating which only vaguely addressed his low-back pain. j. The PEB erred by failing to consider substantial new evidence. The PEB must make findings and recommendations based upon the MEB proceedings, evaluations of duty performance, and any other available relevant evidence. A rebuttal to PEB findings may be made when substantial new evidence exists and is submitted which, by due diligence, could not have been presented before disposition of the case by the PEB. When additional medical evidence or an addendum to the MEB is received after the PEB has forwarded the case and the PEB determines that such evidence would change any finding or recommendation, the case will be recalled by the PEB and a new DA Form 199 (PEB Proceedings) issued. k. The applicant was given a 20 percent rating for chronic back pain on 26 August 2008 and was found by the PEB not to be a candidate for surgery. On 12 September 2008, following an examination by Dr. B____M____ at WRAMC, the applicant was formally diagnosed with a "degenerative disc at L5-S1 with a large posterior annular tear." That diagnosis led to him undergoing the IDET procedure on 7 November 2008. As a result of the change in his circumstances, the applicant had the date of his discharge pushed to April 2009. The alteration of his discharge date further shows that a substantial change in the applicant’s medical condition existed following the conclusion of the PEB. During this time a new medical condition was established as the root cause of the applicant’s back pain, which had previously been unknown, and that diagnosis led to him undergoing surgery and physical therapy, which the PEB had previously stated he was not a candidate for. l. Despite the significant change in his diagnosis, when the applicant attempted to remedy the situation and appeal the PEB's decision, he was consistently met with resistance. After enlisting the assistance of his Congressman, the President of the PEB finally responded and claimed that a review had found no change in the applicant’s medical records. In one of two responses, the President of the PEB also confirmed that the applicant underwent surgery and had his discharge date altered as a result. This means that the President of the PEB confirmed that the applicant’s medical situation differed from the situation seen by the PEB. Despite his knowledge of the applicant’s specific changes in condition, the President still maintained that no change occurred. Therefore, either the reviewing body erred by refusing to recognize the change in circumstances and how it contradicted their prior findings, or they erred by failing to evaluate new and substantial evidence within the applicant’s service treatment records. As degenerative disc disease is an entirely separate condition under the VA schedule for rating disabilities (VASRD), for the President of the PEB to claim that no change in the applicant’s medical records occurred is unmistakably a clear error. m. Had the PEB properly reviewed the applicant’s complete and updated medical record, they undoubtedly would have adjusted its rating to include his diagnosis for degenerative disc disease. When combined with his other unfitting conditions, he would have been rated at over 30 percent disabled and medically retired. To correct this error, the ABCMR should retroactively medically retire the applicant due to the overwhelming evidence of separate ratable conditions that existed prior to his discharge. n. The PEB erred by failing to rate all unfitting medical conditions that were present within the applicant’s record. In making a determination of the rating of disability of a member of the armed forces for purposes of this chapter, the Secretary concerned shall take into account all medical conditions, whether individually or collectively, that render the member unfit to perform the duties of the member's office, grade, rank, or rating. Veterans are entitled to disability compensation for all service-connected disabilities. o. In the applicant’s case, the PEB erred not only by failing to consider his degenerative disc disease diagnosis, as mentioned above, but also by failing to consider the other conditions incurred during his service. These conditions, which the VA immediately rated following his discharge, were easily identifiable within his service treatment records and should have been considered by the PEB. Had the PEB considered the combined impact of the applicant’s degenerative disc disease, cervical strain, and GERD, as it should have, the PEB would have rated him above 30 percent, leading to his medical retirement. The applicant should have been afforded a 30 percent rating for his chronic thoracolumbar strain with degenerative disc disease of the lumbar spine and his cervical strain rather than a 20 percent rating for chronic low back pain. p. While the PEB failed to consider the applicant’s updated diagnosis, the VA did recognize the error and corrected his disability rating within 2 months of his discharge. After considering the same evidence that was, or should have been, available to the PEB, the VA rated the applicant over 30 percent for his chronic thoracolumbar strain with degenerative disc disease and his cervical strain. That rating occurred based entirely off of evidence of the applicant’s condition during his service, with no evidence being relied upon that was obtained after his discharge. Subsequent ratings by the VA, and additional surgeries, have further established the depth and scale of his spinal issues incurred during service. Had the PEB correctly identified any of these conditions, instead of maintaining a 20 percent rating purely for chronic low back pain, the applicant would have been medically retired with a disability rating of at least 30 percent. q. Although VA ratings are not binding on the ABCMR, they are persuasive evidence regarding the extent of unfitting conditions at the time of discharge. As Bosch v. United States stated, "the VA's decision should be weighed by the [board for correction of military records], together with all other evidence presented by plaintiff." McCord v. United States also dealt with the degree to which the ABCMR should rely upon VA decisions. In McCord, the plaintiff was discharged with a 20 percent combined rating for degenerative disc disease of the lumbar spine along with radiculopathy of the left lower extremity." The VA, relying upon the plaintiffs service treatment records, separately listed and rated Mr. McCord's radiculopathy at 10 percent. Following the VA's decision, the plaintiff appealed to the ABCMR for correction of his records, arguing that the PEB erred by not separately considering his radiculopathy. The court found for the plaintiff, stating that the VA had only relied upon the plaintiffs service treatment records when coming to their decision, and, as a result, the ABCMR should have corrected the plaintiffs PEB rating to reflect the VA's rating of 30 percent. r. The applicant’s case shares many similarities with McCord. First, the applicant was medically separated with a rating of 20 percent for his spinal condition. However, upon review by the VA shortly after his discharge, his rating was separated into multiple conditions which led to him being given a rating even higher than that of the plaintiff in McCord. The VA also stated in its decision, that it relied upon the veteran 's service treatment records, including his MEB and PEB proceedings, his personnel file, and VA exams, which were conducted before the applicant’s discharge and would not have included any worsening of his condition following his discharge. When specifically citing its reasons for rating the applicant at 20 percent for degenerative disc disease, the VA cited lumber spine problems in November 2003, a magnetic resonance imaging (MRI) in July 2006, and his VA examination in which he mentioned his chronic low back pain. Similarly, when addressing the applicant’s 10 percent rating for his cervical strain, the VA cited problems with his cervical spine in 2006 and a diagnosis of "a non-allopathic cervical lesion and a neck strain in 2007." What is most notable is that the VA did not cite the applicant’s diagnosis from Dr. M____ and IDET procedure as their reason for either rating, instead relying upon the earlier incidents within the applicant’s service treatment records. This gives even further credence to the applicant’s claim that the PEB erred by failing both to recognize and to separately consider his degenerative disc disease and cervical strain when evaluating his case. s. It is clear from these instances that the VA was able to identify separate ratable conditions from the applicant’s service treatment records that the PEB should have addressed. Had the PEB identified and properly rated these conditions, as the VA did, he would have been afforded at minimum a 30 percent rating, which would have led to his medical retirement. The applicant should have been given a 10 percent rating for his GERD and gastric ulcer, leading to at least a 30 percent overall rating. The PEB erred by failing to properly evaluate the applicant’s GERD as an unfitting condition, in addition to his other unfitting conditions. Had the PEB considered his GERD in conjunction with his other conditions, the applicant would have been given a combined rating above 30 percent. t. A Soldier is considered unfit when the preponderance of evidence shows the Soldier is unable to reasonably perform the duties of their office, grade, rank, or rating. Current Army regulations state that "[a] Soldier may be determined unfit as a result of the overall effect of two or more impairments even though each of them, standing alone, would not cause the soldier to be found unfit because of physical disability." McCord further highlights the PEB’s duty "to consider the 'overall effect of all disabilities.” In McCord, the court found that even those conditions that are not found to be individually unfitting should be considered in conjunction with any unfitting conditions, as the collective impact of all conditions contributed to the plaintiffs overall unfitness. As a result, in McCord, the plaintiffs case was remanded to the ABCMR to retroactively increase the plaintiffs rating to 30 percent at the time of discharge, leading to the plaintiff's medical retirement. u. Evidence from the applicant’s service treatment records shows repeated issues with GERD, including a diagnosis of a gastric ulcer, which hindered his ability to exercise and led to multiple bouts of sickness. Due to the impact it had on his ability to exercise and perform his daily tasks, the PEB easily could have determined GERD to be an unfitting condition. However, regardless of whether the PEB was correct in failing to identify the applicant’s GERD as an unfitting condition, the PEB still erred by failing to consider the collective impact of his GERD alongside his unfitting degenerative disc disease and cervical strain. The collective impact of all those conditions, which undoubtedly were affecting the applicant simultaneously, would easily have led to him being rated above 30 percent, leading to his medical retirement. v. The applicant was denied a full and fair review of his case, as a conflict existed between the USAPDA and the President of the PEB. "No member of the armed forces may be retired or separated for physical disability without a full and fair hearing if he demands it." "A PEB member must recuse themself in any proceeding in which their impartiality may reasonably be questioned." Black's law dictionary defines a conflict of interest as "a situation that can undermine a person due to self-interest and public interest." When reviewing PEB findings, the USAPDA must determine that "the Soldier received a full and fair hearing" and that all findings made by the PEB "were just, equitable, supported by substantial facts, and in keeping with the provisions of law and regulations." w. It is the USAPDAs duty to review PEB findings to ensure that each service member is afforded a full and fair hearing of their case. In the applicant’s case, the President of the PEB that oversaw his case, was Colonel (COL) D____ C____. COL C____ also happened to be the Deputy Commander of the USAPDA installation that reviewed this PEBs findings. After the applicant enlisted the assistance of his Congressman, COL C____, in his role as the Deputy Commander of the USAPDA, affirmed that the findings of the PEB in which he also presided "were in conformance with the provisions of law and regulations" following a review by the agency of which he was in command. It would be difficult, if not impossible, to fathom any situation in which one would review their own actions and determine them to not be in conformance with the provisions of law and regulation. x. There is a commonly used phrase in the military that "perception is reality." Having the person who issues a PEB finding subsequently review that finding to determine if a full and fair hearing was provided certainly has the perception of being a conflict of interest. Given the result, it is obvious that this conflict of interest was also a reality that precluded the applicant from receiving a fair review of his case. Had a truly full and fair review of the PEB findings been performed, there would have been at least some possibility of a nonconcurrence with the PEB findings. However, given that the President of the PEB commanded the agency tasked with reviewing the PEB findings, such a possibility was stifled from the start, denying any opportunity for the applicant to truly rebut the PEBs findings prior to his discharge. y. The ABCMR did not properly evaluate all the evidence in the applicant’s record and should have granted him combat veteran status. The ABCMR is not an investigative body, and as a result, it may request additional evidence at its own discretion. While the ABCMR was not at fault by evaluating only the evidence on hand, and not the additional evidence attached to this brief, the Board made mistakes in its evaluation of the PEB proceedings and in its evaluation of the applicant’s request for combat veteran status on his DD Form 214. z. The ABCMR erred by failing to properly consider the medical evidence within the applicant’s record when reviewing the PEBs findings. As Sections I and II of this brief explain, the PEB failed to properly consider all the evidence within the applicant’s record. While ignoring evidence within his service treatment records of his degenerative disc disease, cervical strain, and GERD, the PEB instead focused on one medical evaluation which dealt exclusively with his ROM. Relying on this evaluation provided only a partial picture of the extent of the applicant’s medical conditions, which prevented a comprehensive analysis of his case from taking place. Instead, the PEB should have properly evaluated his complete records, and reconsidered the changes in his circumstances as the VA did, which would have led to a rating of at least 30 percent given the severity of his conditions. aa. The ABCMR, which had the ability to evaluate the PEB decision, as well as the applicant’s medical records and updated diagnosis, should have recognized the PEB's error. Additionally, the ABCMR should have acknowledged the discrepancy between the PEB's determination that the applicant was not a surgical candidate and the updated determination by Dr. M____ that his condition should be treated with IDET. Such a discrepancy should have immediately indicated to the ABCMR that the applicant’s condition had changed and was more severe than the PEB had previously believed. Unfortunately, while recognizing that the applicant underwent IDET, the ABCMR stated that the event showed no measurable change in his circumstances. That decision was clearly erroneous, as a cursory inspection of his medical records and PEB proceedings shows the dramatic change in his diagnosis as well as the added need for surgery. Additionally, the ABCMR should have found that the need for surgery directly indicated a change in the applicant’s circumstances. bb. In recognition of this error, the ABCMR should correct its prior mistake when reconsidering the evidence of the applicant’s IDET procedure and subsequent diagnosis of degenerative disc disease by Dr. M____. Should the ABCMR properly identify the changes to the applicant’s circumstances, it is clear they would reach a conclusion similar to that of the VA, granting him a rating above 30 percent and granting him medical retirement. cc. The ABCMR erred by failing to correct the applicant’s DD Form 214 to reflect his combat veteran status. In his initial application to the ABCMR, the applicant requested that his DD Form 214 be changed to reflect his combat veteran status. In his application, the applicant referred to two specific instances where he was deployed to Jordan and Saudi Arabia while serving in the White House Communications Agency. The ABCMR confirmed in its prior findings that the applicant was in fact in Saudi Arabia and Jordan during the times he specified and the Defense Finance and Accounting Service (DFAS) confirmed that the applicant received hostile fire/imminent danger pay as well as the combat zone tax exclusion for his service during those periods. Surprisingly however, the ABCMR concluded that "TDY is not always a deployment." Instead, the ABCMR stated that "it cannot be determined what [the applicant] was doing in Jordan for 12 days or in Saudi Arabia for 17 days." As a result, the ABCMR concluded that there was insufficient evidence to show a deployment to a theater of combat operations. dd. The VA defines a deployment to include "any movement from a military Service member's home station to somewhere outside the continental U.S. and its territories." The VA adds that a deployment is not restricted to combat as units can be deployed for reasons ranging from humanitarian aid to increased security. In order to be eligible for combat veteran benefits from the VA, veterans must have served on active duty in a theater of combat operations after 11 November 1998 and must have been discharged under other than dishonorable conditions. While the VA does add that a typical deployment runs from 90 days to 15 months, there is no exact time specification needed in order to be considered a combat veteran for the purposes of benefits. Executive Order No. 12744 also designated the total land areas of Saudi Arabia as a combat zone beginning on 17 January 1991. The land areas of Jordan have also been designated as a combat zone both due to Executive Order 13239 and certification by the Department of Defense. ee. It is undisputed that the applicant, while on active duty with the White House Communications Agency, travelled both to Jordan from 22 November 2006 to 3 December 2006, and to Saudi Arabia from 3 January 2008 to 19 January 2008. Both areas were certified to be combat zones during the applicant’s deployment and had received hostile fire pay, which should clearly indicate that he was acting on orders in a deployed setting. These facts alone should meet the basic definition of a deployment to a combat zone which should qualify the applicant for combat veteran status. ff. The ABCMR however, previously found that it was impossible to ascertain what exactly the applicant "was doing" while in Saudi Arabia and Jordan. First, it is clearly evident that he was acting on orders, regardless of whether the contents of those orders are exactly known, given that he received hostile fire pay while travelling to multiple combat zones. Second, a simple search online reveals that the applicant’s deployments directly coincided with official White House Archive records detailing Former President Bush's diplomatic travels both to Jordan and Saudi Arabia during the exact same timeframe. Given that the applicant was serving within the White House Communications Agency at that time, one can easily conclude that he was continuing in his role to support the White House directly as the Commander-ln Chief travelled to certified combat zones. gg. For these reasons, the ABCMR should amend its previous findings in recognition of the fact that the applicant was deployed to combat zones while serving on active duty as a member of the White House Communications Agency. Given those facts, the applicant clearly meets the standards set to be designated as a combat veteran, entitling him to all the benefits such status confers. hh. The applicant is an honorably discharged Army veteran who dedicated the better part of a decade to serving his country. Unfortunately, the PEB which handled his case failed to properly evaluate all of his records and to consider his conditions both individually and collectively. This led to giving the applicant an improper rating which precluded him from being medically retired. As the VA's subsequent findings show, the applicant should have been rated for his degenerative disc disease, cervical strain, and GERD, which would have placed him well over the 30 percent rating needed for medical retirement. Had the PEB, or subsequently the ABCMR, correctly identified such issues, the applicant would currently be medically retired and receiving the benefits which he is due. While the ABCMR cannot undo the years of pain which the applicant continues to struggle with, the ABCMR does have the power to correct the mistakes made in handling his case. Thus, the applicant respectfully requests a retroactive increase of his disability rating to at least 30 percent and a medical retirement discharge as well as an alteration of his DD Form 214 to reflect his combat veteran status. 3. The applicant enlisted in the Regular Army on 17 April 2002 and was awarded the Military Occupational Specialty (MOS) 25B (Information Technology (IT) Specialist). 4. The applicant’s available service records do not contain deployment orders and he has not provided a copy, but email correspondence from DFAS shows the applicant’s Master Military Pay Account (MMP) reflects he received hostile fire/imminent danger pay and combat zone tax exclusion for the following locations and timeframes: * 22 November 2006 through 3 December 2006 for Jordan * 3 January 2008 through 19 January 2008 for Saudi Arabia 5. The applicant’s service records contain two DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), covering the above periods of overseas service in 2006 and 2008, and in pertinent part show the following: a. The NCOER covering the period from 1 January 2006 through 31 December 2006, shows the applicant was rated in his principal duty tile of Presidential Operations NCO. Daily Duties and Scope shows he was responsible for deploying 15 to 20 member Presidential communications team and equipment worldwide in direct support of the President, senior White House staff, U.S. Secret Service in a nominative/selectively manned Joint Service Agency. Part IV (Rater Values/NCO Responsibilities includes his Rater’s remark that he displayed excellent leadership skills while deployed as an Operations NCO. b. The NCOER covering the period from 1 January 2008 through 31 December 2008, shows the applicant was rated in his principal duty title of Presidential Operations NCO. Daily Duties and Scope shows he was responsible for logistical support of 15-to- 20-member Presidential communications team and communications equipment worldwide in direct support of the President, Vice President, First Lady, Senior While House staff and U.S. Secret Service in a nominative/selectively manned Joint Service Agency. Part IV (Rater Values/NCO Responsibilities includes his Rater’s remarks that he planned and coordinated the deployments, recovery, and logistical support for 15 to 20 team members on 9 CONUS/OCONUS deployments for 78 days and that he provided training to all service members deployed with him on the functions and procedures of an Operations NCO. 6. A Standard Form 600 (Chronological Record of Medical Care) provided by the applicant contains an MEB Narrative Summary (NARSUM), dated 8 July 2008, which shows the following: a. The applicant was seen at the WRAMC, Orthopedic Clinic on the date of the form for evaluation of his back in preparation of an MEB NARSUM. b. The history of his illness shows about 4 years ago while stationed at Fort Lewis, WA, the applicant’s back began to hurt while he was running. He went to the primary care clinic and received a temporary physical profile and medication. He did not improve and was referred to physical therapy and later to a chiropractor. Symptoms continued. In January 2006, he was reassigned to the White House Communications Agency and was seen at Bolling Air Force Base where he had an MRI. No surgery was recommended. He was referred to the Pain Management Clinic at WRAMC and to physical therapy. He has had an epidural block and 6 rhizotomies which have not helped. He has had several episodes of acute pain and has been seen in urgent care or pain management and was given Toradol injections, the last of which was 3 weeks ago at Fort Meade, MD. One month ago he had an acute flare while in AZ and was given Toradol in a civilian emergency room. c. Review of systems shows when his back really hurts him, he has a headache. He has had gastrointestinal (GI) symptoms and takes Esomeprazole daily. d. Diagnostic studies show degenerative changes at the L5-S1 level with moderate to marked left neuroforaminal stenosis. e. Present condition shows the applicant always has some pain in his low back that does not radiate, which affects his sleep when it is severe. The acute pain lasts a day or so and is followed by 4-5 days of above average pain. He leaves work early because of back symptoms about 1 time per month. He walks for the Army Physical Fitness Test (APFT). He can fire a weapon, but he cannot do a ruck march, prepare a defensive position, or do rushes. He no longer runs. His primary area of symptoms, 95 percent of his pain is in his low back. f. He was diagnosed with chronic low back pain, medically not acceptable. His disposition shows he achieved maximum benefits of non-operative treatment and his condition is stable. Surgery is not indicated. Continued conservative care with emphasis on activity modification is recommended. He is unable to perform certain military required tasks. This requires a permanent physical profile rating of “3” in factor L (Lower extremities) (L3) and renders him medically unacceptable under the provisions of Army Regulation (AR) 40-501 (Standards of Medical Fitness). A permanent physical profile is being initiated and he is referred to the PEB for disposition. 7. A physical profile is used to classify a Soldier’s physical disabilities in terms of six factors or body systems, as follows: “P” (Physical capacity or stamina), “U” (Upper extremities), “L” (Lower extremities), “H” (Hearing), “E” (Eyes), and “S” (Psychiatric) and is abbreviated as PULHES. Each factor has a numerical designation: 1 indicates a high level of fitness, 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 8. A DA Form 3349 (Physical Profile) shows the applicant was given a permanent physical profile rating of “3” in factor L due to chronic low back pain, with a rating of “1” in all other factors on 8 July 2008. The physical profile limits the applicant in multiple functional activities and the APFT run event. 9. A DA Form 3947 (MEB Proceedings) shows the following: a. An MEB convened on 9 July 2008, where the applicant’s condition of chronic low back pain was deemed medically unacceptable under the provisions of AR 40-501 and the applicant was referred to the PEB. b. Item 30 (Continuation) shows the applicant reviewed the contents of the MEB packet and read the attached DA Form 3947, NARSUM and the DA Form 3349. In regard to issues related to fitness for duty and disability compensation, he understood that the PEB would consider and review only those conditions listed on the DA Form 3947. The DA Form 3947 includes all his current medical conditions and whether or not they meet medical retention standards. The conditions which do not meet medical retention standards are properly listed on those three forms and he agrees that the MEB accurately covers all his current medical conditions. c. The form is unsigned by the applicant. 10. A letter from the Pain Clinic Attending Physician, WRAMC, dated 16 September 2008, referencing Post IDET instructions shows the following: a. The applicant was scheduled to undergo the IDET procedure on 7 November 2008. The included information outlines the limitations he is to follow as well as the timing of the rehabilitative program following this procedure, as per the established protocol by the WRAMC Pain Service and Physical Therapy Service. b. With regard to the expected outcome of this procedure, by 12 months, 50 percent to 80 percent of patients obtain relief of 50 percent of their symptoms. WRAMC’s analysis of their IDET experience has tended toward a 50 percent reduction in symptoms in 50 percent of the patients treated. 11. A DA Form 199 (PEB Proceedings) shows the following: a. A PEB convened on 18 September 2008, where the applicant was found physically unfit with a recommended combined rating of 20 percent and that his disposition be separation with severance pay. b. This case is a formal reconsideration based on additional information provided. This DA Form 199 supersedes DA Form 199 dated 26 August 2008. Note, the DA Form 199, dated 16 August 2008, is not in the applicant’s available records for Board review. c. The applicant’s unfitting condition is listed as chronic low back pain which began about 4 years ago without a specific injury or trauma. MRI showed degenerative changes at the L5-S1 level with moderate to marked left neuroforaminal stenosis. He is able to forward flex to 100 degrees; however, he has pain as he flexes beyond 55 degrees. Conservative treatment has failed to relieve his pain and he is not a surgical candidate. Gait, alignment of the spine, and lower extremity motor examination are all normal. There was no localized tenderness and Waddell signs were negative. Rated for 55 degrees of forward flexion and the rating includes consideration of functional loss due to factors such as pain on repeated use and painful motion, fatigability, incoordination, weakness with repetitive use and flare-ups. d. The applicant signed the form on 8 October 2008, indicating he did not concur with the findings and recommendations and demanded a formal hearing with personal appearance with counsel of his choice at no expense to the Government. He did not indicate he attached a statement of disagreement. 12. A memorandum from the U.S. Army PEB President to the applicant, dated 14 October 2008, shows the following: a. Washington D.C. PEB received the applicant’s Soldier Election, dated 8 October 2008, to his formal reconsideration PEB held on 18 September 2008. b. Although the applicant presented no new objective evidence with his nonconcurrence, his case was carefully reviewed. Based upon that review, the PEB found no basis for a change in its action in the applicant’s case and reaffirmed its previous findings. c. In the PEB’s 19 September 2008 letter, optimum level of care was explained as well as the applicant’s disability rating. His unfitting condition, low back pain, was rated for ROM. His thoracolumbar spine ROM was measured as 100 degrees of forward flexion and non-compensable; however, it was noted that he has pain as he flexes beyond 55 degrees. Therefore, based on forward flexion of 55 degrees, his condition was rated at 20 percent. The VASRD awards 20 percent for 31-60 degrees of forward flexion; therefore, he is appropriately rated. d. The applicant’s entire case file was forwarded to the USAPDA for review. 13. A second DA Form 3349 shows the applicant was given a temporary physical profile on 7 November 2008, status/post IDET procedure, limiting all functional activities, APFT events, and aerobic conditioning activities. The comments shows after convalescent leave, the applicant should have 4-hour work days, minimize driving, and minimize time sitting. 14. A third DA Form 3349 shows the applicant was given an additional temporary physical profile on 1 December 2008, with an expiration date of 19 December 2008, limiting all functional activities, APFT events, and aerobic conditioning activities. The comments show he was to follow the guidelines of the [IDET] handout and if unable to follow all guidelines, consider limited work hours or other alternatives. 15. In a self-authored memorandum for record, dated 1 December 2008, the applicant requested a change to his final discharge date 26 January 2009 to 30 April 2009, because he underwent a procedure at WRAMC to improve or repair his ruptured disk in his back on 7 November 2008 and needed additional time for recovery and physical therapy. 16. Two additional memoranda from WRAMC medical professionals, dated in December 2009, indicate the applicant underwent an IDET procedure on 7 November 2008 for his chronic back pain. At the time he had been found unfit by the PEB, but the applicant was still undergoing care for this procedure, which was expected to last through 7 April 2009, and would give him 6 months of needed physical therapy. It was requested that the applicant’s out-processing timeline be extended to 7 April 2009, to give him adequate time to heal and transition out of the Army. 17. A letter from the USAPDA, Deputy Commander, addressed to the applicant’s Member of Congress, dated 14 January 2009, shows the following: a. An MEB determined on 9 July 2008, that the applicant did not meet medical retention standards for chronic low back pain. The applicant agreed with the findings and his case was forwarded to the PEB. On 25 July 2008, an IPEB determined the applicant was unfit for further military service for the condition of chronic back low back pain and recommended his separation with severance pay with a disability rating of 10 percent. The applicant disagreed with the findings and requested a formal hearing with representation from regularly appointed counsel. b. On 26 August 2008, based on the applicant’s testimony, arguments from counsel, and all medical evidence presented, the formal PEB affirmed the IPEB findings. The applicant’s counsel submitted additional medical documentation for review and the PEB determined the applicant could not perform the duties of his MOS due to his medical condition and elective surgery of IDET would not change his disability disposition or rating. However, upon further review, it was noted the applicant had pain on forward flexion beyond 55 degrees and based on the VASRD, forward flexion between 31-60 degrees is compensated at 20 percent. Therefore, the PEB increased the applicant’s rating to 20 percent. The applicant disagreed with these findings, but did not present any new medical evidence. The PEB upheld the findings and forwarded the case to the USAPDA for further processing. c. On 7 November 2008, the applicant underwent the IDET procedure at WRAMC and on 11 December 2008 the deputy Commander for Clinical Services at Kimbrough Ambulatory Care Center requested the applicant’s separation date be extended to 7 April 2009, to allow for completion of physical therapy. d. The USAPDA reviewed the applicant’s case file and determined the findings and recommendations of the PEB were in conformance with the provisions of law and current regulations and sent the transition center a message authorizing the applicant’s separation from service on or before 30 April 2009. 18. A second letter from the USAPDA, Deputy Commander, addressed to the applicant’s Member of Congress, dated 17 April 2009, shows the USAPDA contacted the applicant’s servicing Medical Treatment Facility (MTF) that conducted the MEB to determine whether there was any additional medical information available that would have affected his disability rating. The hospital deputy commander notified the USAPDA that the applicant’s current medical records do not reflect a worsening of the applicant’s medical condition and the MEB submitted did reflect his current medical conditions. Accordingly, the USAPDA would be taking no further action on the applicant’s case and he would separate with disability severance pay later in the month as previously scheduled. 19. The applicant’s DD Form 214 shows he was honorably discharged on 30 April 2009, under the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), due to disability with severance pay, non-combat related. He was credited with 7 years and 14 days of net active service. Item 18 (Remarks) does not reflect any deployments. 20. A VA Rating Decision, dated 8 June 2009, shows the applicant was granted a service-connected disability rating for the following conditions effective 1 May 2009: * chronic thoracolumbar strain with degenerative disc disease of lumbar spine, 20 percent * GERD and gastric ulcer, 10 percent * cervical strain, 10 percent * pseudofolliculitis barbae, 0 percent * pilonidal cyst, 0 percent * allergic rhinitis, 0 percent 21. The applicant previously applied to the Board in October 2010, requesting physical disability retirement in lieu of physical disability discharge with severance pay and amendment of his DD Form 214 to reflect he is a combat veteran. On 13 October 2011, the Board denied the applicant’s requests, determining the evidence presented did not demonstrate the existence of a probable error or injustice and that the overall merits of his case were insufficient as a basis for correction of his records. 22. 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. 23. Title 38, USC, 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. 24. 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. 25. 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 (EMR) (AHLTA and/or MHS Genesis), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/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 he be determined to have had additional unfitting conditions for service with an increase in his military disability rating and a subsequent change in his disability separation disposition from separated with disability severance pay to permanent retirement for physical disability; and reversal of the United States Army Physical Disability Agency’s determination that his disability (Chronic Low Back Pain) was not combat related. He states through counsel: “Mr. [Applicant] was Medically Separated in 2009 with a disability rating of 20% for "chronic low back pain" by the Physical Evaluation Board (PEB). Under 10 U.S.C. § 1216a(b), when making a determination, the PEB must take into account "all medical conditions, whether individually or collectively, that render the member unfit to perform." Mr. [Applicant]’s application for relief is primarily based on the error by the PEB to appropriately rate all of his conditions at the time of his discharge, either individually or collectively. Had his injuries been appropriately rated, as they later were by the VA, Mr. [Applicant] would have been afforded a Medical Retirement from the US Army. Additionally, Mr. [Applicant] requests that his DD214 be corrected to reflect his combat veteran status, due to his service with the White House Communications Agency in Jordan and Saudi Arabia.” 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 17 April 2002 and was separated with $37,930.00 of disability severance pay on 30 April 2009 under provisions provided in chapter 4 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006). d. On 9 July 2008, a medical evaluation board determined the applicant’s “Chronic Low Back Pain” failed the medical retention standards in chapter 3 of AR 40-501, Standards of Medical Fitness. This was the only condition listed on his permanent physical profile. The MEB Narrative Summary shows he had the atraumatic onset of low back pain in 2004 while serving in the United States, the condition was non- operative in nature, and it had failed to several different treatments: “HISTORY OF PRESENT ILLNESS: About 4 years ago, while stationed at Ft. Lewis, WA, he was running when his back began to hurt. He continued to run and his feet became numb. He went to the primary care clinic and was given a temporary profile and medication. He did not improve and was referred to physical therapy and later to the chiropractor. Symptoms continued. In Jan 2006, he was reassigned to this area. He was seen at Bolling AFB and he had an MRI. No surgery was recommended. He was referred to pain management clinic at Walter Reed Army Medical Center and to physical therapy. He has had an epidural block and 6 rhizotomies. These have not helped. e. On 18 September 2008, the applicant’s formal physical evaluation board (PEB) reconsideration found his “Chronic low back pain” remained the sole unfitting condition for continued military service and increased the disability rating from 10% to 20%: “Chronic low back pain began about four years ago without a specific injury or trauma. An MRI showed degenerative changes at the L5-S1 Level with moderate to marked left neuroforaminal stenosis. Soldier is able to forward flex to 100 degrees; however, he has pain as he flexes beyond 55 degrees ... Gait, alignment of the spine and lower extremity motor examination are all normal. There was no localized tenderness and Waddell signs were negative. Rated for 55 degrees of forward flexion; and, IAW VASRD [VA Schedule for Rating Disabilities] 4.10, 4.40, 4.45 and 4.59, the rating includes consideration of functional loss due to factors such as pain on repeated use and painful motion, fatigability, incoordination, weakness with repetitive use and flare-ups.” f. The PEB had made the administrative determination that his disability was not combat related: They found no evidence that is 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. g. As the MEB narrative summary stated, the applicant had the onset of his low back condition while “he was running” in the state of Washington, not while deployed outside of the United States. h. Using the VA Schedule for Rating Disabilities (VASRD), the PEB had derived and applied a 20% rating and recommended the applicant be separated with disability severance pay. On 8 October 2008, after being counseled by his PEB liaison officer on the board’s findings and recommendation, the applicant non-concurred with the PEB’s rating of his disability. i. The applicant’s appeal of his rating was denied by the U.S. Army Physical Evaluation Board on 14 October 2008: “Although you presented no new objective evidence, your case was carefully reviewed. Based upon that review, this Board finds no basis for a change in its action in your case end reaffirms its previous findings. In the PEB's 18 September 2008 letter to you and Mr. S, optimum level of care was explained as well as your disability rating. Your unfitting condition, low back pain, was rated for range of motion (ROM). Your thoracolumbar spine ROM was measured as 100 degrees of forward flexion and non-compensable; however, it was noted that you have pain as you flex beyond 55 degrees. Therefore, based on forward flexion of 55 degrees, your condition was rated at 20%. The VASRD awards 20% for 31 - 60 degrees of forward flexion so you are appropriately rated.” j. The VA Schedule for Rating Disabilities (VASRD) is the document used by the military services to rate unfitting military disabilities as required by US statute. k. Paragraph B-1a and B1b of Appendix B to AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006): “B–1. Purpose of the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) a. Congress established the VASRD as the standard under which percentage rating decisions are to be made for disabled military personnel. Such decisions are to be made according to Title IV of the Career Compensation Act of 1949 (Title IV is now mainly codified in 10 USC 61.) b. Percentage ratings in the VASRD represent the average loss in earning capacity resulting from these diseases and injuries. The ratings also represent the residual effects of these health impairments on civil occupations.” l. The PEB correctly rated the applicant’s lumbar spine condition using VASRD diagnostic code (DC) 5237 - Lumbosacral or cervical strain. Spinal conditions, to include spinal stenosis (DC 5238) and degenerative arthritis of the spine (DC 5242), are rated using the same diagnostic criteria: General Rating Formula for Diseases and Injuries of the Spine Forward flexion of the thoracolumbar spine greater than 60 degrees but not more than 85 degrees; or combined range of motion greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour …10% Forward flexion of the thoracolumbar spine between 30-60 degrees; or combined motion is less than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour ……... 20% Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine ......................... 40% m. Counsel states: “On June 8, 2009, after reviewing Mr. [Applicant]'s claim less than two months after his discharge, the Department of Veterans Affairs (VA) rated Mr. Powers at 20% for degenerative disc disease of the lumbar spine, 10% for gastroesophageal reflux disease (GERD), and 10% for cervical strain, for a combined rating of 40%. The evidence cited by the VA included Mr. [Applicant]’s STRs [service treatment records], MEB proceedings, PEB proceedings, and VA exams conducted prior to his discharge. In short, utilizing the same information that was, or should have been, available to the PEB, the VA immediately rated Mr. Powers over 30% disabled, which would have qualified him for medical retirement had such a rating been made by the PEB. n. The VA’s Disability Ratings Activity Sites have personnel thoroughly trained in the derivation of disability ratings using the VASRD. Counsel points out that these VA professionals also rated the applicant’s low back condition at 20%. o. There is no evidence the applicant’s GERD, cervical strain, or any other additional duty incurred medical condition which would have failed the medical retention standards of chapter 3 of AR 40-501, Standards of Medical Fitness, prior to his discharge. Thus, there was no cause for re-referral to the Disability Evaluation System. Furthermore, there is no evidence that any additional medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. p. Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (8 February 2006) states: “The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.” q. Review of his records in JLV shows he has been awarded multiple VA service- connected disability ratings. However, the DES only compensates an individual for service incurred medical condition(s) which have been determined to disqualify him or her from further military service. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions which were incurred or permanently aggravated during their military service; or which did not cause or contribute to the termination of their military career. These roles and authorities are granted by Congress to the Department of Veterans Affairs and executed under a different set of laws. r. It is the opinion of the ARBA Medical Advisor that neither an increase in his military disability rating, a referral of his case to the DES, nor the awarding of combat related finding for his disability is warranted. 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 through counsel 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, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review through counsel of the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding that neither an increase in his military disability rating, a referral of his case to the DES, nor the awarding of combat related finding for his disability is warranted. The Board noted based on the opine, there is no evidence the applicant’s GERD, cervical strain, or any other additional duty incurred medical condition which would have failed the medical retention standards, prior to his discharge. 2. The Board determined the applicant’s counsel did not demonstrate by a preponderance of evidence that the PEB determination was in error. Based on the general rating formula for diseases and injuries of the spine, the Board agreed the counsel’s applicant was rated in accordance with the formula based on his condition and range of motion at the time. Furthermore, the Board found based on joint travel regulation guidance, the applicant was on a temporary duty status (TDY) and was not assigned to Jordan (12 days) or Saudi Arabia (16 days). The Board noted, by definition “TDY is also a time period spent away from a Service member’s PDS while processing for separation from the Service, release from active duty, placement on the Temporary Disability Retired List, or retirement. TDY includes business travel, schoolhouse training travel, deployment travel, and special circumstances travel. Subparagraph C states deployment travel, unit travel, or personnel traveling together under an order directing limited or no reimbursement are considered TDY”. Additionally, the Board determined there is insufficient evidence to support the applicant met the criteria for deployment credit, evidence show the applicant was not in both areas of operation for more than thirty days. Based on the preponderance of evidence and the medical opine, the Board denied relief. 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 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. 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, 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 (DES) 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 (AR) 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 a Medical Evaluation Board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (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 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/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. 2. AR 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. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. c. The percentage assigned to a medical defect or condition is the disability rating. A rating is not assigned until the PEB determines the Soldier is physically unfit for duty. Ratings are assigned from the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (VASRD). The fact that a Soldier has a condition listed in the VASRD does not equate to a finding of physical unfitness. An unfitting, or ratable condition, is one which renders the Soldier unable to perform the duties of their office, grade, rank, or rating in such a way as to reasonably fulfill the purpose of their employment on active duty. There is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. 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. 3. 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. 4. AR 635-5 (Separation Documents), in effect at the time, prescribes policies and procedures regarding separation documents, including the standardized preparation of the DD Form 214 (Certificate of Release or Discharge from Active Duty). The specific instructions for preparation of the DD Form 214, item 18 (Remarks) show for an active duty Soldier deployed with his or her unit during their continuous period of active service to enter the statement “SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates, for example, YYYYMMDD-YYYYMMDD). 5. Department of the Army Pamphlet 525-93 (Military Operations - Army Deployment and Redeployment Processes and Procedures) contains instructions, formats, reporting requirements, and guidelines used to carry out the Army’s deployment and redeployment policies and programs. It also contains overviews of Army readiness and force projection. It provides information on prioritizing, planning, developing, organizing, coordinating, and executing deployment and redeployment operations and programs. a. Deployment is defined as: The relocation of forces and materiel to desired operational areas. Deployment encompasses all activities from origin or home station through destination, specifically including intra-continental U.S., inter-theater, and intra- theater movement legs, staging, and holding areas. b. Deployment order is defined as: A planning directive from the Secretary of Defense, issued by the Chairman of the Joint Chiefs of Staff, that authorizes and directs the transfer of forces between combatant commands by reassignment or attachment. A deployment order normally specifies the authority that the gaining CCDR will exercise over the transferred forces. 6. The Joint Travel Regulations (JTR) Uniformed Service Members and DoD Civilian Employees implements policy and laws establishing travel and transportation allowances of Uniformed Service members and Department of Defense (DoD) civilian travelers. It also implements station and certain other allowances. a. TEMPORARY CHANGE OF STATION is a civilian employee’s relocation for a temporary period to a new PDS to perform a long-term temporary assignment, and subsequent return to the old PDS after completing the assignment. b. TEMPORARY DUTY (TDY) is duty at one or more locations away from the PDS providing for return to the old PDS. TDY enroute to a new PDS and TDY pending further orders are also considered TDY. TDY is also a time period spent away from a Service member’s PDS while processing for separation from the Service, release from active duty, placement on the Temporary Disability Retired List, or retirement. TDY includes business travel, schoolhouse training travel, deployment travel, and special circumstances travel. Subparagraph C states deployment travel, unit travel, or personnel traveling together under an order directing limited or no reimbursement are considered TDY. This includes a unit traveling in support of a combat mission, peacekeeping, or disaster relief. This also includes field duty, maneuver training, or sea duty if the troops involved are not permanently assigned to a ship. The Government provides all transportation, lodging, and dining facilities when personnel traveling together are under an order directing limited or no reimbursement. c. TDY STATION is a location away from the PDS where a traveler is authorized to travel. 7. 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. 8. 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. 9. 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. 10. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230005930 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1