IN THE CASE OF: BOARD DATE: 17 January 2024 DOCKET NUMBER: AR20230007177 APPLICANT REQUESTS: a medical retirement vice separation due to disability with severance pay. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 199 (Physical Evaluation Board (PEB) Proceedings), 21 October 2004 * DD Form 214, 20 December 2004 * VA decision letter, 27 March 2006 * VA letter, 28 March 2006 * Veterans Affairs (VA) decision letter, 29 September 2021 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 is requesting a discharge upgrade to medically retired due to his post-traumatic stress disorder (PTSD), right shoulder, left shoulder, and right knee with a combined VA rating evaluation of 60% effective 21 December 2004, the first day after his date of discharge. He was afforded a PEB, and his shoulder was the only condition considered at the time, which included in the 60% evaluation. He believes if all the conditions effecting his ability to remain on active duty were considered, he would have met the criteria for full medical retirement and not severance pay. It is because of this reason; he is respectfully requesting consideration for the upgrade to medical retirement. 3. The applicant had a medical evaluation conducted on 19 February 2002, for the purpose of enlistment. He was found qualified for service. He was assigned a PULHES of 111111. A physical profile, as reflected on a DA Form 3349 (Physical Profile) or DD Form 2808, is derived using six body systems: "P" = physical capacity or stamina; "U" = upper extremities; "L" = lower extremities; "H" = hearing; "E" = eyes; and "S" = psychiatric (abbreviated as PULHES). Each body system has a numerical designation: 1 meaning a high level of fitness; 2 indicates some activity limitations are warranted, 3 reflects significant limitations, and 4 reflects one or more medical conditions of such a severity that performance of military duties must be drastically limited. Physical profile ratings can be either permanent or temporary. 4. The applicant enlisted in the Regular Army on 13 March 2002, and he served in Iraq from 11 February 2003 – 17 June 2003. 5. The applicant provided a DA Form 199 showing a PEB, which convened on 21 October 2004 found the applicant physically unfit, recommended a combined rating of 10 percent, and recommended his disposition be separation with severance pay if otherwise qualified. a. He was found unfit for the following unfitting condition: Chronic Bilateral Shoulder Pain, rated as slight not requiring daily narcotics therapy/frequent; rated at 10 percent. b. Based on a review of the objective medial evidence of record, the findings of the PEB were that the applicant’s medical and physical impairment prevented reasonable performance of duties required by grade and military specialty. c. The applicant concurred with the PEBs findings and recommendations and waived a formal hearing of his case on 25 October 2004. 6. The applicant was honorably discharged in accordance with Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirements, or Separation), paragraph 4-24b (3), due to disability, severance pay. He received $9,829.80 in severance pay. He completed 2 years, 9 months, and 8 days net active service this period. His DD Form 214 also shows: * Item 28 (Separation Code): JFL * Item 27 (Reentry Code): 3 7. The applicant provides: a. VA decision letter, 27 March 2006, showing service connection for the following: * PTSD rated at 30 percent effective 21 December 2004 * Patellofemoral syndrome, left knee increased to 10 percent effective 21 December 2004 * Patellofemoral syndrome, right knee increased to 10 percent effective 21 December 2004 * Right shoulder bursitis increased to 10 percent effective 21 December 2004 * Healed left shoulder surgery with residual scar increased to 10 percent effective 21 December 2004 b. VA letter, 28 March 2006, regarding disagreement with VA action. Explaining appeal process and provided a statement of the case to the applicant. (The full letter and statement of the case is provided for the board’s review). c. VA decision letter, 29 September 2021, showing a decision for the following conditions: (1) Evaluation of amyotrophic lateral sclerosis (ALS) with loss of use of both hands, which is currently 100 percent disabling, is now shown as ALS with loss of use of the upper extremities, to include right shoulder bursitis effective 31 August 2021. (2) Service connection for loss of use of feet is granted with an evaluation of 100 percent effective 31 August 2021. (3) Service connection for speech impairment is granted with an evaluation of 10 percent effective 31 August 2021. (4) Service connection for dysphagia is granted with an evaluation of 30 percent effective 3 March 2021. (5) Entitlement to a higher level of special monthly compensation-based loss of use of both upper extremities, loss of use of both feet and the need for need for aid and attendance is granted from 31 August 2021. 8. 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. 9. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA and/or MHS Genesis), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: b. The applicant is applying to the ABCMR requesting additional medical conditions be determined unfitting for military service with a subsequent increase in his military disability ratings and a change in his disability discharge disposition from separated with disability severance pay to permanent retirement for physical disability. He states: “I am requesting a discharge upgrade to medically retired due to my PTSD, right shoulder, left shoulder, and right knee with a combined VA rating evaluation of 60% effective 21 DEC. 2004, the first day after my date of discharge. I was afforded a physical evaluation board and my shoulder was the only condition considered at the time which included in the 60% evaluation. I believe if all the conditions effecting my ability to remain on active duty were considered, I would have met the criteria for full medical retirement and not severance pay. It is because of this reason, I am respectfully requesting consideration for the upgrade to medical retirement.” c. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 13 March 2002 and was discharged with $9,829.80 of disability severance pay on 20 December 2004 under provisions in paragraph 4-24b(3) of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990). d. The applicant’s 21 October 2004 Physical Evaluation Board (PEB) Proceedings (DA Form 199) show the PEB found his “Chronic Bilateral Shoulder pain, Rated as Slight” to be his sole unfitting condition for continued military service. Using the VA Schedule for Rating Disabilities, they derived a 10% rating and recommended the applicant be separated with disability severance pay. On 25 October 2024, after being counseled o the PEB’s findings and recommended disposition, the applicant concurred with the board and waived his right to a formal hearing. e. JLV shows the applicant received multiple VA service-connected disability ratings the day following his discharge from the Army. These included PTSD (30%), limited flexion of knee both knees at 10% each, and bilateral impairment of clavicle or scapula at 10% for each shoulder. This shows that his shoulders were incorrectly rated as they should have been rated separately for a combined military disability rating of 20%. However, his disability discharge disposition would have remained separated with disability severance pay as a rating of 30% or higher is required for a permanent retirement for physical disability f. No additional medical documentation was submitted with the application. g. There is no evidence the applicant’s PTSD, bilateral knee conditions, or any other medical condition 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 referral to the Disability Evaluation System. Furthermore, there is no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. h. 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 and consequently prematurely ends their career. 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. i. Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (1 September 1990) 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 his or her office, grade, rank, or rating.” j. It is the opinion of the ARBA Medical Advisor that neither an increase in his military disability rating nor a referral of his case back to the DES 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 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 no evidence the applicant’s PTSD, bilateral knee conditions, or any other medical condition would have failed the medical retention standards prior to his discharge. Additionally, the medical opine noted in their review, there was no evidence that any medical condition prevented the applicant from being able to reasonably perform the duties of his office, grade, rank, or rating prior to his discharge. 2. Referral to the IDES occurs when a Soldier has one or more conditions which appear to fail medical retention standards as documented on a duty liming permanent physical profile. The Board agreed there is insufficient evidence to support the applicant’s contentions for a medical retirement vice separation due to disability with severance pay. Based on this, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 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, 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. 4. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 5. Title 38, U.S. Code, 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. 6. 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. 7. Title 10, U.S. Code, section 1556 requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230007177 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1