IN THE CASE OF: BOARD DATE: 27 August 2021 DOCKET NUMBER: AR20200009774 APPLICANT REQUESTS: in effect entry into the disability evaluation system. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * counsel’s statement * service treatment records – excerpts * police reports dated 7 August 2016 and 20 November 2016, * communications with Oklahoma Department of Human Services (OK DHS) * Memorandum from Headquarters (HQ), U.S. Army Medical Department Activity (USAMEDDAC), dated 5 December 2016, subject: Family Advocacy Case Review Committee (CRC) Incident Determination * Memorandum from HQ, USAMEDDAC, dated 15 December 2016, subject: Commander Notification of Family Advocacy Program (FAP) CRC Incident Determination and Treatment Plan Related to Applicant * Memorandum, USAMEDDAC, dated 22 December 2016, subject: Medical Care of Applicant * medical email communications * OK DHS letter to Applicant dated 2 January 2017 * Letter from Applicant’s company commander to spouse dated 5 January 2017 * Memorandum from Applicant’s legal assistance attorney to USAMEDDAC dated 6 January 2017 * Memorandum for Record dated 12 January 2017, subject: ETS [Expiration of Term of Service] Transaction for Medical * Applicant’s memorandum to USAMEDDAC dated 17 January 2017, subject: Request Reconsideration of CRC Determination * civilian medical documents undated * Letter to Applicant from USAMEDDAC dated 24 January 2017, subject: Nurse Case Management * Enlisted Record Brief * Email dated 14 February 2017, subject: Denial of Medical Evaluation Board (MEB) * OK DHA letter to applicant dated 21 March 2017, subject: Appeal Final Determination Notification FACTS: 1. Counsel states, in effect, the applicant is a decorated combat Veteran of Afghanistan with an impeccable military record. He received numerous awards for his meritorious service. He met the physical fitness standards with high scores on his Army Physical Fitness Tests (APFT). In his personal life, he was deprived of his constitutional rights to due process during and after deliberations by the USAMEDDAC Family Advocacy Case Review Committee (CRC). He was not allowed to represent himself at the CRC meetings nor have witnesses speak on his behalf. Counsel states, in effect, the authority vested in CRC permitted the personalization of the democratic process. The CRC was not accountable for its decisions that ended the applicant’s military career. Concerning his marital relationship, the police reports show it was his spouse who initiated their disagreements and often violently struck him causing him to bleed. Concerning his medical health, he had knee conditions that led to problems with his hips known as "femoral acetabular impingement." The Army did not effectively treat him for his medical problems nor initiate a medical evaluation board (MEB). His military leadership let him ETS without due process. In effect, an injustice occurred when he was denied a MEB by medical personnel. 2. The following evidentiary facts are recorded within his military personnel file. * On 5 May 2007 he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) * On 5 May 2007, a medical doctor completed a physical examination determining he met medical entrance standards under Army Regulation 40-501 (Standards of Medical Fitness) * On 17 May 2007 he was discharged from the USAR DEP and enlisted in the Regular Army on 18 May 2007 * He has combat experience serving in Afghanistan from 17 December 2008 through 20 November 2009 as a petroleum supply specialist * On 6 April 2010 he extended his enlistment for 30 months establishing his new ETS date as 18 April 2013 * On 19 January 2012 he reenlisted for 5 years * On 14 January 2014 he submitted a DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters (BAQ), and/or Variable Housing Allowance (VHA)) because he was legally separating from his spouse who was eligible for BAQ as a Soldier * On 7 April 2014 his son was born * On 1 June 2016 he was promoted to sergeant (SGT)/pay grade E-5 * On 24 October 2016 personnel at Fort Sill, Oklahoma issued him Orders 298- 1321 discharging him from the Regular Army on his ETS date 18 January 2017 * By memorandum on 12 January 2017 his battalion commander stated the applicant needed a 30 day ETS extension for medical reasons * On 18 January 2017 new discharge orders were issued extending his date of discharge to 17 February 2017 and his original orders were revoked 3. On 17 February 2017 he was honorably released from active duty, not by reason of physical disability, per Orders 018-1306 dated 18 January 2017 issued by personnel at Fort Sill. He received a DD Form 214 documenting and recording his active service. It contains the following pertinent facts: * Block 13 (Decorations, Medals, Badges, Citations and Campaign Medals Awarded and authorized) among his awards three Army Commendation Medals, one Army Achievement Medal, two Army Good Conduct Medals, and the Afghanistan Campaign Medal with one bronze service star * Block 23 (Type of Separation) – discharge * Block 24 (Character of Service) – honorable * Block 25 (Separation Authority) – Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4 * Block 26 (Separation Code) – KBK * Block 27 (Reentry Code) – 1 * Block 28 (Narrative Reason for Separation) – completion of required active service 4. Through counsel the applicant provides the following evidence in support of his application. a. A review of excerpts from his service treatment records shows: * On 19 October 2007, x-rays of his left ankle were normal after reporting he twisted his ankle * On 16 January 2008, x-ray reports show his right hip bones, joints and soft tissue were normal; there was no fracture or dislocation present * On 1 February 2008, he was seen in the emergency room for right hip pain and after x-rays there was no evidence of stress fracture or callus; there was evidence of multiloculated cystic changes at the sclerotic margins and seen in his ischial bone * On 27 February 2008, a computed tomography (CT) scan found osteophytes (bone spur – bone projection formed on the margins of a joint caused by stress or damage to surface) were present superiorly at the right S1 membranous joint. Small fluid collections were seen adjacent to the sigmoid colon * On 3 March 2008, chest x-rays show there was no evidence of acute cardiopulmonary disease or effusion * On 18 April 2008, a magnetic resonance imaging (MRI) found his left hip was normal with no bursal or other unexpected fluid collections; there was no fracture or dislocation or abnormal soft tissue calcification * On 2 May 2008, a MRI analysis found an abnormal increased signal at the insertion of the gluteus medius with greater trochanter with increased signal in the tensor fascia lata as it crosses the trochanter suggesting a muscle or tendinous injury * On 27 May 2008, radiological reports of his pelvis showed he had mild osteoarthritic degenerative changes at the right sacrolilac joint and there was no evidence of intraperitoneal fluid * On 15 August 2015, he reported lower back pain with radiation to his left buttock. He underwent x-rays of his back showing his vertebral body heights and disc spaces were unremarkable; his spine alignment was normal; no bony abnormality, and no scoliosis * On 18 August 2015, x-rays of his feet (bilateral) showed he had hallux valgus on his left great toe; bunion medical distal left great toe metatarsal; a normal and longitudinal arch; there was no fracture, dislocation or evidence of a stress fracture * On 7 February 2016, a MRI of his right hip showed a small subcortical cyst lateral right acetabulum otherwise his right hip was normal * On 9 February 2016, he reported left hip pain for 7 days and underwent x-rays which showed no fracture, no dislocation, no evidence of periosteal reactive, no stress fracture; and, no degenerative joint disease * On 17 February 2016, x-rays of his bilateral hips showed no bony abnormality and the soft tissue surrounding his hip was unremarkable * On 19 February 2016, a MRI of his left knee without contrast shows he had prior anterior cruciate ligament (ACL) reconstruction; there was no evidence of arthrofibrosis; there was evidence of mild patellofemoral chondrosis, and minimal thickening of the proximal patella tendon suggesting mild tendinosis * On 30 March 2016 and on 12 August 2016, he underwent an intra-articular injection for pain management of his left hip injecting Marcaine, lidocaine and Kenalog * On 21 November 2016, a radiological report shows there was evidence of a previous ACL reconstruction; there was no evidence of acute fraction, periosteal reaction or dislocation present; no significant degenerative changes; no joint fluid or focal bony lesion; and, his soft tissue appeared unremarkable * On 23 November 2016, a radiological report for his hips showed no bony abnormality and his soft tissue surrounding the hip was unremarkable b. A civilian police report dated 7 August 2016 shows the applicant’s spouse was arrested and charged with simple assault and domestic abuse. The applicant reported his spouse bit him on his left arm, jumped on his back and bit him on his back. The civilian police officers saw the applicant was bleeding on his left forearm and the back of his neck and bite marks were present on his skin. His spouse acknowledged she had hurt her husband. The applicant pressed charges against his spouse and he was provided with information on domestic abuse. A narrative incident report states the applicant and his spouse had a 2-year old son, the applicant’s mother lived with them, and they were in the process of getting a divorce. c. The OK DHS conducted an investigation after receiving a referral presumably based on the 7 August 2016 incident in their home. The applicant and his spouse were found negligent while caring for their son. The applicant was negligent for failing to protect his son from domestic violence. His spouse was found negligent of exposing their son to domestic violence. These two findings were substantiated. d. On 7 November 2016 the OK DHS issued the applicant a letter informing him they had accepted his request to appeal his substantiated finding of negligence. The appeal process was administrative only. He was provided information on the appeals process within OK DHS. e. On or about 22 November 2016 the applicant and his spouse were conducting a custody transfer of their child at a public location. His spouse assaulted him during the process after an argument. A third party witness was present who called the police. The civilian police were summoned and the applicant was advised of his rights as a victim. f. On 2 December 2016 the applicant submitted a written appeal to the OK DHS. He described how his spouse’s behavior stemmed from a physical and sexually abusive history. She was a victim of sexual assault during initial military training and her perpetrator was court-martialed. He had made contact with her and she, in turn, had taken their son to visit him in another state. Upon their return, his son complained his bottom hurt. His spouse would leave the house without notice. Upon returning she would be angry and have emotional outbursts often inflicting harm on his body. In August 2016, he was granted a protective order against his spouse. She is allowed court-ordered parental visits with their son. When his son returns, the applicant said he notices bruises on his body. She was ordered by the court to have their son during the week. She often failed to pick him up from daycare and he was called to pick him up. In November, she was violent towards him physically when they were trying to transfer their son from his car to hers. A witness called the police and reports were filed showing he was the victim. He concluded by stating in effect he has never endangered his son and takes reasonable precautions to protect him ensuring his safety and well-being. g. He received a memorandum from the USAMEDDAC Family Advocacy Program CRC on 5 December 2016. The CRC met on 1 December 2016 to presumably review the OK DHS substantiated finding that he was negligent from protecting his son from witnessing domestic violence. The CRC stated their review found the incident met the criteria for neglect and that this information would be entered into the Department of Defense Central Registry database. A treatment plan was outlined requiring him to undergo individual counseling within the Family Advocacy Program (FAP). He was advised of his rights under Army Regulation 608-18 (The Family Advocacy Program). He acknowledged receiving the memorandum. h. On 15 December 2016, the USAMEDDAC FAP CRC notified his company commander by memorandum of his involvement in a domestic abuse incident wherein the finding of neglect toward his son was substantiated by OK DHS. The intent of the memorandum was to ensure the applicant was command directed to participate in individual family counseling so he could learn to set boundaries and improve his communication skills. i. On 22 December 2016 by memorandum his chain of command was informed he would be undergoing surgery on 17 January 2017 at a civilian medical facility. He had post-operative appointments scheduled at the post USAMEDDAC on 30 January 2017. He would require physical therapy post-surgery and 30 days of convalescent leave with 6 months of recovery. j. A series of emails between his military medical doctor and himself state, in effect, the military medical doctor gave the applicant a physical profile. The applicant asked the doctor to adjust his profile to show he could participate in the APFT because he was trying to extend his enlistment. He also stated he was aware another Army medical doctor referred him to a MEB. However, his primary care manager (PCM) had spoken to personnel within the Integrated Disability Evaluation System (IDES) who after reviewing his medical evidence determined his surgeon was conducting exploratory surgery. He was informed he should undergo physical therapy. He opined he had already received injections in his hip for pain management. He also spoke with an orthopedic surgeon who stated physical therapy was not warranted based on his medical condition. His PCM also informed him that the physical profile timeliness standards (for the MED/IDES) were not met under regulatory criteria. He concludes by stating he will seek a civilian medical opinion so as to provide the IDES with more evidence. He is also concerned that his military medical doctor’s opinion is different than his PCM in regards to the MEB. He hopes he will be extended and allowed to undergo the IDES process. k. His doctor stated he did not agree with the applicant’s PCM assessment. The applicant’s diagnosis is clearly stated and there is no mention of exploratory surgery. He concluded by informing the applicant he was deploying and would not be able to change the applicant’s physical profile. l. On 2 January 2017 he received written notification from the OK DHS. On his appeal, the OK DHS did not substantiate the incident wherein he exposed his son to domestic violence. m. On 5 January 2017 the applicant’s company commander sent his former spouse a letter stating in effect, that the Army expects their Soldiers to provide for their legal dependents. However, it is the court who determines the amount. On 9 November 2016 a temporary court order was filed ordering the applicant to pay her $610.50 a month beginning 1 November 2016, and thereafter on the first day of the month until further notice. He had counseled the applicant who was aware of his financial responsibilities but he could not force him to comply with the civilian court order. n. On 6 January 2017 a legal assistance Judge Advocate sent a memorandum to USAMEDDAC FAP. He stated he was assisting the applicant with his appeal of their determination he met the criteria for physical abuse. He concluded by requesting an extension. o. On 12 January 2017 his battalion commander requested an extension of his ETS because of his pending medical surgery and requirement for convalescent leave. p. On 17 January 2017 he submitted his written appeal to the USAMEDDAC FAP. He stated, in effect, the CRC did not have all relevant information when it made its decision. The Committee did not have third party testimony nor was it aware of his spouse’s patterns of domestic violence towards him. He chronologically outlined the sequence of events concerning his spouse and her acts of domestic abuse towards him including a third party was present on 20 November 2016. The police were called and took his oral statement wherein he agreed with the applicant’s recollection of the incident. His mother suffered from domestic abuse too and received a civilian protective disorder against his spouse. He concludes by requesting the Committee reverse its decision. q. A civilian orthopedic surgeon requested the applicant undergo an MRI with contrast so he could better evaluate the applicant’s medical condition. His medical opinion was the applicant’s diagnosis was hip impingement and labral tearing. r. On 24 January 2017 he received a memorandum from a USAMEDDAC nurse case manager who outlined her duties and responsibilities. s. On 14 February 2017 a legal assistance Judge Advocate sent an email to an employee within USAMEDDAC regarding their denial decision pertaining to the applicant’s MEB. He is seeking to reenlist, yet his chain of command states he does not meet medical reenlistment qualification standards. He asked how the applicant’s chain of command could deny him reenlistment when they, USAMEDDAC, determined he was medically fit? He further questioned why they stated he needed physical therapy when his orthopedic surgeon determined physical therapy was not necessary for his treatment. He concluded by asking them to reschedule the applicant’s surgery that he was denied. t. His civilian orthopedic surgeon affirmed his medical opinion that the applicant’s diagnosis was hip impingement and labral tearing after reviewing the contrast MRI. u. He was administratively discharged from the Regular Army on 17 February 2017 upon his ETS. v. On 21 March 2017 the OK DHS sent him a letter advising him they had reversed their finding to show the finding of "Neglect/Failure to Protect" was now "Unsubstantiated." 5. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (DES)) and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. In pertinent part, paragraph 4-2e states the legacy process will be used for Army Veterans referred to the DES by the ABCMR. 6. 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 at less than 30 percent. 7. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System. The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR in essence requesting a referral to the Disability Evaluation System (DES) for knee and hip pain. 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 18 May 2007 and was honorably discharged on 17 February 2017 under the separation authority provided in chapter 4 of AR 635-200, Active Duty Enlisted Administrative Separations (19 December 2016), after having competed his required active service. b. Review of the applicant’s records in AHLTA shows: (1) Left knee - He underwent an arthroscopic anterior cruciate ligament (ACL) reconstruction in his left knee on 9 June 2015. At his orthopedic follow-up appointment on 30 September 2015, the surgeon noted a near normal range of motion of 0 – 120 degrees. The was no swelling or effusion and the knee was ligamentously stable. (2) Mid-back pain – He was first seen for low back pain on During his last 5 months in Service he was receiving chiropractic treatment on post. (3) Right hip – He was first seen how right hip pain in April 2008, and was seen by orthopedics in May 2008. Based upon an MRI, the surgeon felt he had a sprain which was treated conservatively. In August, the surgeon felt the applicant’s symptoms were mostly from overuse in a hip with mild pincher impingement. He noted surgery was not indicated at that time and recommended the applicant be placed on a non-duty limiting permanent profile. c. The applicant was seen by orthopedics on 23 November 2016 in follow-up for his right hip and left knee concerns: Having bilateral hip pain and left knee pain. The patient was involved in an altercation this last week and in which he was kicked and assaulted. He complains a lateral based deep pain as well as an exacerbation of his groin pain bilaterally. Per my previous history of present illness: He is a 33-year-old male who underwent left ACL reconstruction with partial lateral meniscectomy in June of 2015. He has a history of bilateral hip pain as well. Currently he is having pain in both hips as well as his left knee. He describes a feeling of instability in the left knee as well as pain. He received intra-articular hip injections that improved his symptoms for approximately 2-1/2 months. Currently, he is very frustrated by the amount of pain that he is having and the impact it is having on his activity living and his ability to be active. d. Examination of the knee revealed a ligamentously stable knee without effusion or swelling. He had a full range of motion with some pain on range of motion testing. He noted some limited motion to his internal rotation with a positive impingement test. Imaging of the knee revealed the previous ACL reconstruction with well-placed ACL tunnels. MRI of his left knee showed the ACL graft to be intact with no evidence of tearing. X-rays of his hip revealed evidence of femoral acetabular impingement with mild degenerative change. The surgeon opined: “The patient is having significant inflammation of his knee following his altercation. He reports that it has improved somewhat with rest. I recommended continued anti-inflammatories and rest with icing. As for his hip, I think it is reasonable to consider arthroscopic femoral osteoplasty with possible acetabuloplasty, labral repair versus debridement and chondroplasty versus microfracture. He's going to return to clinic in 2 weeks to schedule this. The patient understands and agrees with the treatment plan.” e. A 22 December 2016 memorandum for the officer manager of the orthopedic clinic states the applicant was scheduled for hip surgery on 17 January 2017. However, on 17 January 2017, the applicant was seen by his primary care manager requesting a second orthopedic referral and to start the medical board process. He was seen by case management on 26 January 2017 and “educated” on the IDES process. f. An AHLTA encounter dated 3 February 2017 states that a referral to IDES was not indicated at that time: “Was told by PA {physician assistant} in MEB that his profile history does not show where he has been having sustained hip issues and he has never been to physical therapy for the hip so really he does not meet the qualifications, he says that in his MOS if he stayed on profile he would be sidelined, so in most cases his unit has worked with him allowing him to do what he can and he has passed all APFT's. But to answer your question, he feels no, his hip has not gotten any better but with the medication he can push through.” g. This is confirmed in a second encounter later on 3 February 2017 at the IDES review clinic: “MEB decision discussed with SM {service member} at length. Will discuss case with Dr. Bell on Monday per SM's request. At this time MEB is not being initiated. SM informed he may continue to seek care for hip pain.” h. He continued to seek entrance into IDES. From a 14 February 2017 encounter: “PCM {primary care manger} contacted the MEB/IDES clinic, I was advised through Dr. Bell (MEB Medical Director) that another MEB referral should not be placed as the SM is not at MRDP {medical retention determination point}. There is nothing else that I as the PCM can do at this point. SGT {Applicant} should follow up with legal representation for further guidance.” i. The MRDP is defined in paragraph 7-4b(2) of AR 40-501, Standards of Medical Fitness (22 December 2016): “The MRDP is when the Soldier’s progress appears to have medically stabilized; the course of further recovery is relatively predictable; and where it can be reasonably determined that the Soldier is most likely not capable of performing the duties required of his MOS, grade, or rank. j. Paragraph 3-1 of AR 635-40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012) 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.” k. Paragraph 5a in appendix 2 to enclosure 3 of Department of Defense Instruction (DODI) 1332.18 SUBJECT: Disability Evaluation System (DES), 5 August 2014, states: “The Disability Evaluation System (DES) compensates disabilities when they cause or contribute to career termination.” This was incorporated in paragraph 3-2b of AR 635- 40, Physical Evaluation for Retention, Retirement, or Separation (20 March 2012) states: (1) 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. (2) When a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit. An enlisted soldier whose reenlistment has been approved before the end of his or her current enlistment, is not processing for separation; therefore, this rule does not apply. l. There is insufficient probative evidence the applicant hip or other medical condition which would have failed the medical retention standards of chapter 3, AR 40-501 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 voluntary discharge. m. It is the opinion of the Agency Medical Advisor that a referral of his case to the DES is not warranted. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, the applicant's statement, and the applicant's record of service. Board members noted that 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. Board members concurred with the medical reviewer's assessment that there is insufficient probative evidence the applicant hip or other medical condition failed the medical retention standards of chapter 3, AR 40-501 prior to his discharge. Likewise, 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 voluntary discharge. For that reason, Board members found no cause for referral to the Disability Evaluation System and voted to deny relief. 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, section 1552 provides in pertinent part that the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. 2. Title 10, U.S. Code (USC), chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with Department of Defense Directive (DoDI) 1332.18 (Disability Evaluation System (DES)) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. The objectives of the system are to maintain an effective and fit military organization with maximum use of available manpower, provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability, and provide prompt disability processing while ensuring the rights and interests of the government and the Soldier are protected. b. Soldiers are referred into the PDES when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB) when a Soldier receives a permanent medical profile P3 or P4 and is referred by a physician; when referred by an MOS Medical Retention Board; when they are command-referred for a fitness-for-duty medical examination; or they are referred by the U.S. Army, Human Resources Command (HRC). c. The PDES assessment process involves two distinct stages: The MEB and the 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 a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. d. 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. 3. Department of Defense (DoD) Technical Manual (DTM) 11-015 (Disability Evaluation System) explains the Integrated Disability Evaluation System (IDES). The version in effect at the time defined the Integrated Disability Evaluation System (IDES) process and procedures. The guidelines within the technical manual were incorporated in the DoD Manual Number 1332.18 (DES Manual: General Information and Legacy DES Time Standards). a. The IDES is the joint DoD-Department of Veterans Affairs (VA) process by which DoD determines whether wounded, ill, or injured Service members are fit for continued military service and by which the DoD and the VA determine appropriate benefits for Service members who are separated or retired for a Service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by the VA for appropriate use by both departments. Although the IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. b. Unless otherwise stated in this DTM, DOD will follow the existing policies and procedures promulgated in DOD Directive 1332.18 (Disability Evaluation System (DES)) and the Under Secretary of Defense for Personnel and Readiness Memoranda. All newly-initiated, duty-related physical disability cases from the Departments of the Army, Air Force, and Navy at operating IDES sites will be processed in accordance with this DTM and follow the process described in this DTM unless the Military Department concerned approves the exclusion of the Service member due to special circumstances. c. IDES medical examinations will include a general medical examination and any other applicable medical examinations performed to VA compensation and pension (C&P) standards. Collectively, the examinations will be sufficient to assess the member’s referred and claimed condition(s) and assist the VA in ratings determinations and assist military departments with unfit determinations. d. Upon separation from military service for medical disability and consistent with Board for Corrections of Military Records (BCMR) procedures of the Military Department concerned, the former Service member (or his or her designated representative) may request correction of his or her military records through his or her respective Military Department BCMR if new information regarding his or her service or condition during service is made available that may result in a different disposition. For example, a veteran appeals the VA’s disability rating of an unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process. If the VA changes the disability rating for the unfitting condition based on a portion of his or her service treatment record that was missing during the IDES process and the change to the disability rating may result in a different disposition, the Service member may request correction of his or her military records through his or her respective Military Department BCMR. 4. Army Regulation 635-40 establishes the Army DES 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. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-5 states 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. These ratings are assigned from the VA Schedule for Rating Disabilities (VASRD). (1) 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. (2) 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. c. 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. The percentage assigned to a medical defect or condition is the disability rating. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009774 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1